23042 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 100923469–1211–02] 

RIN 0648–BA27 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Northeast 

(NE) Multispecies Fishery; Framework 

Adjustment 45 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule partially 

approves Framework Adjustment (FW) 

45 to the NE Multispecies Fishery 

Management Plan (FMP) and 

implements the approved measures. FW 

45 was developed by the New England 

Fishery Management Council (Council) 

to make adjustments necessary to ensure 

that conservation and management 

objectives of the FMP, including 

preventing overfishing, rebuilding 

overfished stocks, achieving optimum 

yield (OY), and minimizing the 

economic impact of management 

measures on affected vessels, are being 

met in accordance with the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). Specifically, this action revises the 

biological reference points and stock 

status for pollock, updates annual catch 

limits (ACLs) for several stocks for 

fishing years (FYs) 2011–2012, adjusts 

the rebuilding program for Georges Bank 

(GB) yellowtail flounder, increases 

scallop vessel access to the Great South 

Channel Exemption Area, approves five 

new sectors, modifies the existing 

dockside and at-sea monitoring 

requirements, revises several sector 

administrative provisions, establishes a 

Gulf of Maine (GOM) Cod Spawning 

Protection Area, and refines measures 

affecting the operations of NE 

multispecies vessels fishing with 

handgear. This action approves the 

Council’s proposed FY 2011 U.S./ 

Canada Management Area total 

allowable catch (TAC), acceptable 

biological catch (ABC), and ACL for GB 

yellowtail flounder, but replaces them 

with new catch limits for this stock 

through a parallel emergency action, 

included as part of this final rule, based 

on the International Fisheries 

Agreement Clarification Act (IFACA) 

that provides new flexibility in setting 

catch limits for this stock. In addition, 

this action disapproves a measure to 

delay fishing industry responsibility for 

paying for at-sea monitoring coverage 

costs in FY 2012. This action is 

necessary to ensure that the fishery is 

managed on the basis of the best 

available science, to comply with the 

ABC control rules adopted in 

Amendment 16 to the FMP, and to 

enhance the viability of the fishery. 

DATES: This rule is effective at 0001 hr 

on May 1, 2011. The specification of the 

GB yellowtail flounder ABC and ACL 

and their distribution are effective May 

1, 2011, through October 24, 2011. 

ADDRESSES: Copies of FW 45, its 

Regulatory Impact Review (RIR), a draft 

of the environmental assessment (EA) 

prepared for this action, and the draft 

Initial Regulatory Flexibility Act (IRFA) 

analysis prepared by the Council are 

available from Paul J. Howard, 

Executive Director, New England 

Fishery Management Council, 50 Water 

Street, Mill 2, Newburyport, MA 01950. 

A supplemental EA was also prepared 

for this action that outlines analysis in 

support of increased FY 2011 GB 

yellowtail flounder U.S./Canada 

Management Area TAC, ABC, and ACL 

implemented by this action. Also, an 

errata sheet was prepared to augment 

the FW 45 EA’s analysis of the impacts 

of the proposed action on distinct 

population segments of Atlantic 

sturgeon and loggerhead sea turtles. The 

draft IRFA prepared by the Council was 

expanded upon in the preamble to the 

proposed rule for this action. The Final 

Regulatory Flexibility Act (FRFA) 

analysis consists of the IRFA, public 

comments and responses, and the 

summary of impacts, and alternatives 

contained in the Classification section 

of the preamble of this final rule and 

applicable sections of Framework 45. 

Copies of the small entity compliance 

guide, the errata sheet for the FW 45 EA, 

and the supplemental EA associated 

with this action are available from 

Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930–2298. The 

FW 45 EA/RIR/IRFA, errata sheet, 

supplemental EA prepared for this 

action, and the relevant analyses for 

Amendment 16 and other recent actions 

are also accessible via the Internet at 

http://www.nefmc.org/nemulti/

index.html or http:// 

www.nero.noaa.gov. Copies of recent 

stock assessments for stocks managed by 

the FMP are also accessible via the 

Internet at http://www.nefsc.noaa.gov/ 

groundfish. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this rule 

should be submitted to the Regional 

Administrator at the address above and 

to the Office of Management and Budget 

(OMB) by e-mail at OIRA_Submission

@omb.eop.gov, or fax to (202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Douglas W. Christel, Fishery Policy 

Analyst, phone: 978–281–9141, fax: 

978–281–9135. 

SUPPLEMENTARY INFORMATION:

Background 

Amendment 13 (April 27, 2004; 69 FR 

22906) included the establishment of 

rebuilding programs for stocks managed 

by the FMP and measures necessary to 

end overfishing, rebuild overfished 

stocks, and help mitigate the economic 

impacts of effort reductions in the 

fishery to the extent practicable. In 

addition to revising existing days-at-sea 

(DAS) measures and substantially 

expanding sector measures, Amendment 

16 (April 9, 2010; 75 FR 18262) 

established a process for specifying 

ABCs and ACLs and distributing 

available catch among components of 

the fishery that catch regulated species 

and ocean pout, and also specified 

accountability measures (AMs) 

necessary to prevent overfishing on 

these stocks and address overages of 

ACLs, as required by the MagnusonStevens Act. 16 U.S.C. 1801 et seq. In 

another action, FW 44 (April 9, 2010; 75 

FR 18356), NMFS set the ACLs for FYs 

2010 through 2012, and distributed such 

allocations among the various 

components of the fishery that catch 

these stocks. 

The Council developed FW 45 as part 

of the established framework adjustment 

process to revise measures necessary to 

ensure consistency with the FMP in 

order to prevent overfishing and rebuild 

overfished stocks, while achieving OY 

in the fishery and minimizing economic 

impact to the extent practicable. 

Updated stock assessments for pollock 

and GB yellowtail flounder conducted 

in 2010 require the ACLs originally 

established under FW 44 pursuant to 

the ABC/ACL process established in 

Amendment 16 to be updated based 

upon revised stock status for pollock 

and a revised rebuilding program for GB 

yellowtail flounder. Further, following 

the transition to sectors under 

Amendment 16, the Council realized 

that several changes to existing 

measures are necessary to make the 

Amendment 16 measures work more 

effectively, as described below. 


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This rule also implements the 

parallel, but separate, emergency action 

that replaces the FW 45 FY 2011 GB 

yellowtail flounder TAC, ABC, and ACL 

based on the flexibility to increase catch 

limits provided by the IFACA, which 

President Obama signed into law on 

January 4, 2011. This Act provides 

authority to the Council and NMFS to 

increase the FY 2011 U.S./Canada 

Management Area TAC, ABC, and ACL 

for GB yellowtail flounder originally 

proposed by the Council under FW 45 

and approved by this action. 

Specifically, the new statute recognizes 

the U.S./Canada Resource Sharing 

Understanding (Understanding) as an 

international agreement for the purposes 

of section 304(e)(4)(A)(ii) of the 

Magnuson-Stevens Act. Based on this 

recognition, the IFACA provides for 

additional flexibility regarding the range 

of catch levels that may be considered 

for GB yellowtail flounder, and allows 

for a higher yearly TAC and, therefore, 

ABC and ACL for this stock in FY 2011, 

provided that overfishing is ended 

immediately and that the fishing 

mortality rate (F) ensures rebuilding 

consistent with the Understanding. The 

justification for implementing these 

increases through emergency action, as 

provided for in section 305(c) of the 

Magnuson-Stevens Act, is explained in 

the preamble to the proposed rule and 

is not repeated here. 

Following the passage of the IFACA, 

NMFS requested a special meeting of 

the Transboundary Management 

Guidance Committee (TMGC), a group 

that consists of NMFS, Council 

members and staff, and United States 

fishing industry representatives and 

their counterparts in the Department of 

Fisheries and Ocean of Canada (DFO) 

that makes recommendations of the 

yearly TACs for stocks managed by the 

Understanding, to reconsider the FY 

2011 U.S./Canada Management Area 

TAC for GB yellowtail flounder 

pursuant to the IFACA and the 

Understanding. On February 9, 2011, 

the TMGC held a conference call to 

consider revising the FY 2011 TAC for 

this stock, and concluded that the 

original combined U.S./Canada 

Management Area TAC for GB 

yellowtail flounder (1,900 mt) could be 

increased to 2,650 mt for FY 2011. 

A proposed rule to implement 

measures proposed in FW 45 was 

published on March 3, 2011 (76 FR 

11858), with public comments accepted 

through March 18, 2011. That proposed 

rule included a detailed description of 

the proposed management measures, 

and other factors that influenced the 

development of this action. Specifically, 

that rule indicated that NMFS was 

considering disapproving the FY 2011 

GB yellowtail flounder U.S./Canada 

Management Area TAC adopted by the 

Council under FW 45, and 

implementing the increased TAC for 

this stock agreed to by the TMGC on 

February 9, 2011, through a parallel, but 

separate emergency action pursuant to 

section 305(c) of the Magnuson-Stevens 

Act. This parallel emergency action was 

proposed and justified in the same 

Federal Register notice as the proposed 

rule for this action, and is being 

promulgated as a final rule in this action 

as well. NMFS also published, at the 

same time as and in conjunction with 

the proposed rule for FW 45, a proposed 

rule to approve the FY 2011 operations 

plans and sector contracts for 19 sectors 

authorized by Amendment 16 and FW 

45 (February 28, 2011; 76 FR 10852). 

Public comments on that rule were 

accepted through March 15, 2011. If 

approved, that rule would also specify 

the annual catch entitlements (ACEs, or 

sector quotas) for each stock allocated to 

each sector pursuant to Amendment 16 

and sector rosters submitted to NMFS 

on December 1, 2010. This roster 

deadline was later extended to allow 

vessels involved in an ownership 

change to either join a sector or change 

its sector affiliation. A final rule 

implementing approved FY 2011 sector 

operations plans and ACE is expected to 

publish in conjunction with this final 

rule and become effective on May 1, 

2011. 

Disapproved Measures 

Delay in Industry Responsibility for AtSea Monitoring Coverage 

In Amendment 16, the Council 

established monitoring measures to 

ensure that sector allocations of the 

ACLs for particular species could be 

accurately monitored. These measures 

included the requirement for sectors to 

develop and pay for an at-sea 

monitoring program beginning in FY 

2012 that meet a minimum level of 

coverage based on the precision of 

bycatch estimates. In the development 

of these measures, the Council noted 

that ‘‘effective management of sectors 

requires that catch be accurately 

known.’’ Thus, the at-sea monitoring 

provisions were developed to ensure 

that landings were accurately monitored 

for each sector. 

To reduce monitoring costs to 

industry, the Council proposed to delay 

the requirement for the fishing industry 

to pay for at-sea monitoring coverage in 

FW 45 by one year. However, without 

industry funding, NMFS funding would 

be the sole source for any at-sea or 

observer monitoring coverage during FY 

2012. During the deliberation of this 

measure, NMFS expressed continued 

concern about the Council’s reliance 

upon NMFS funding to fully support a 

provision required by the FMP, 

particularly the specific at-sea 

monitoring coverage levels outlined for 

sector-developed at-sea monitoring 

programs in Amendment 16 for FY 

2012. Because NMFS’ funding is not 

guaranteed and depends upon 

Congressional appropriations, it is likely 

that funding levels will fluctuate on a 

yearly basis and may not be sufficient to 

fully fund the at-sea monitoring 

coverage requirements in the FMP. The 

NMFS budget for FY 2012 has yet to be 

finalized. Accordingly, NMFS remains 

uncertain whether sufficient funding 

will exist in FY 2012 to provide 

sufficient coverage to accurately 

monitor sector catch, as required under 

Amendment 16. 

NMFS has determined, therefore, that 

the proposed delay of industry funding 

for at-sea monitoring coverage in FY 

2012 is inconsistent with the FMP and 

the requirements of the MagnusonStevens Act. First, such a delay, without 

sufficient federal funding for at-sea 

monitoring, would likely fail to 

maintain conservation and management 

measures that are necessary and 

appropriate for the conservation and 

management of the fishery to prevent 

overfishing and rebuild overfished 

stocks, as required by section 303(a)(1) 

of the Magnuson-Stevens Act. As noted 

above, Amendment 16 indicated that 

sufficient at-sea monitoring coverage is 

necessary to ensure that catch is 

accurately known. Without the 

requirement for the industry to fund at 

sea monitoring in the absence of 

sufficient federal funding, it would not 

likely be possible to obtain sufficient 

accurate catch information, including 

information on discards that is most 

reliably acquired through observer and 

at-sea monitoring coverage. As a result, 

it would not likely be possible to 

effectively estimate F, evaluate whether 

overfishing is occurring, and develop 

ACLs and other measures that would 

prevent overfishing and rebuild 

overfished stocks. Further, by reducing 

the likelihood that sufficient funding 

will be available to provide adequate atsea monitoring coverage necessary to 

accurately monitor catch in the fishery, 

the disapproved measure would have 

undermined measures in Amendment 

16 that helped to ensure that the 

standardized reporting methodology is 

capable of assessing the amount and 

type of bycatch occurring in the fishery, 

as required in section 303(a)(11). 

Accordingly, NMFS has disapproved 


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the measure to delay making the 

industry responsible for the costs 

associated with at-sea monitoring in FY 

2012 to the extent that the federal funds 

are not available. NMFS intends to pay 

for at least some level of at-sea 

monitoring coverage in 2012, as it has 

done every year, based on the amount 

of available funding, and will work 

toward trying to secure the funds 

necessary to fully support such coverage 

in 2012. However, industry shall be 

responsible for that balance of at-sea 

monitoring coverage costs that are not 

covered by available Federal funding 

starting in FY 2012. 

Approved Measures 

The following summarizes the 

approved FW 45 measures, based on the 

order in which applicable provisions 

appear in the regulations at 50 CFR part 

648. These measures build upon the 

provisions implemented by previous 

management actions, and are intended 

to either supplement or replace existing 

regulations, as described for each 

measure. This final rule also includes, 

through authority granted to NMFS by 

section 305(d) of the Magnuson-Stevens 

Act, revisions to regulations that are not 

specifically identified in FW 45, but that 

are necessary to implement measures to 

achieve, but not exceed the sub-ACLs 

available to the common pool fishery 

during FY 2011 and to correct errors in, 

or clarify, existing provisions, as 

described further below. A more 

detailed explanation of the rationale for 

each approved measure can be found in 

the proposed rule for this action. 

Although NMFS proposed to 

disapprove the FY 2011 GB yellowtail 

flounder U.S./Canada Management Area 

TAC, ABC, and ACL originally adopted 

by the Council under FW 45, NMFS 

ultimately decided not to disapprove 

these measures through this final rule, 

based upon further review of the FW 45 

measures and applicable law. 

Disapproval of the TAC, ABC, and ACL 

proposed by FW 45 was not appropriate, 

because disapproval of a measure is 

only permissible if it is inconsistent 

with Magnuson-Stevens Act 

requirements and other applicable law. 

In the context of FW 45, these catch 

limits are consistent with the FMP and 

the Magnuson-Stevens Act requirements 

and other applicable law. These catch 

limits comply with the MagnusonStevens Act requirements to end 

overfishing and rebuild overfished 

stocks within 10 years. In addition, the 

FW 45 catch limits comply with the 

advice of the Council’s Scientific and 

Statistical Committee in setting an ABC 

for this stock using the ABC control rule 

specified in the FMP and the best 

available scientific information. Further, 

the FW 45 ABC and ACL for GB 

yellowtail flounder incorporate both 

scientific and management uncertainty, 

consistent with the National Standard 1 

guidelines. The fact that these proposed 

specifications for GB yellowtail flounder 

could be increased pursuant to IFACA 

does not undermine their approvability 

in FW 45. Moreover, if the emergency 

rule increasing the ACL expires before 

the Council has recommended a new 

ACL for FY 2012, the approved 

Framework 45 measure could go into 

place automatically, thereby avoiding a 

gap in TACs, ABCs and ACLs for this 

stock. 

Accordingly, this final rule approves 

the FY 2011 GB yellowtail flounder 

TAC, ABC, and ACL in FW 45, but 

temporarily replaces them, through 

NMFS’ emergency action authority 

provided in section 305(c) of the 

Magnuson-Stevens Act, with the revised 

TAC, ABC, and ACL described further 

below in Item 5 of this preamble. 

This parallel emergency action 

increasing FW 45’s specifications of FY 

2011 GB yellowtail flounder U.S./ 

Canada Management Area TAC, ABC, 

and ACL is justifed by, and based on, 

new legal authority stemming from the 

January 4, 2011, enactment of the 

IFACA, as more fully explained in the 

preamble to the proposed rule for this 

action. Pursuant to the requirements of 

IFACA that any new catch levels still 

prevent overfishing and are consistent 

with the U.S. Canada Understanding, 

NMFS held a TMGC conference call. As 

noted in the preamble of the proposed 

rule for this action, based on this TMGC 

conference call, a report was generated 

that concluded that the higher FY 2011 

TAC for this stock specified in the 

proposed rule for this action and 

described further in Item 5 of this 

preamble would still likely prevent 

overfishing (i.e., result in a F below F at 

maximum sustainable yield (FMSY, or 

Fref, as listed in the Understanding)) and 

result in a 5 percent increase in median 

biomass from 2011 to 2012. Therefore, 

the increased TAC is consistent with the 

provisions of the IFACA and National 

Standards 1 and 8 of the MagnusonStevens Act because it prevents 

overfishing, is consistent with the F 

outlined in the Understanding, 

continues to rebuild this overfished 

stock, optimizes OY, and minimizes 

adverse economic impacts to fishing 

communities through higher catch 

limits and increased revenues, without 

compromising conservation objectives 

of the FMP and applicable law. Further, 

consistent with National Standard 9 of 

the Magnuson-Stevens Act, an increased 

TAC reduces bycatch and associated 

bycatch mortality in the fishery by 

increasing the amount of GB yellowtail 

flounder that can be caught during FY 

2011 and minimizing incentives to 

discard this stock and others caught 

concurrently. However, this increase in 

catch limits for GB yellowtail flounder 

is only valid for the duration of the 

emergency and one extension (i.e., FY 

2011). To justify comparable increases 

in catch limits for future fishing years, 

the Council must adjust the FMP to 

establish a new rebuilding program and 

timeline consistent with IFACA as more 

fully discussed below in item 2. 

1. Status Determination Criteria for 

Pollock 

Based upon an updated peer-reviewed 

benchmark stock assessment conducted 

in July 2010 (Stock Assessment 

Workshop, or SAW, 50), pollock is not 

overfished or subject to overfishing. 

Thus, this species no longer requires the 

rebuilding program established in 

Amendment 16. As noted in the 

preamble of the proposed rule for this 

action, NMFS implemented an 

emergency action on July 20, 2010 (75 

FR 41996) to incorporate the results of 

this assessment and update the status 

determination criteria and the 

associated FY 2010 ABC and ACL for 

this species. These increased catch 

limits were renewed through July 17, 

2011, or until replaced by another 

action through a notice published on 

December 1, 2010 (75 FR 74661). 

Therefore, formally integrating the 

results of the 2010 pollock stock 

assessment, updated status 

determination criteria, ABC, and ACLs 

for this species into the FMP through 

this final rule is necessary to replace the 

measures implemented by the 

emergency action that would expire in 

July 2011. Table 1 lists the revised 

status determination criteria, with 

numerical estimates of these parameters 

listed in Table 2. The revised biomass 

target parameter for pollock, where 

spawning stock biomass is at maximum 

sustainable yield (SSBMSY) or its proxy, 

is SSB at 40 percent maximum 

spawning potential (MSP). The 

maximum F threshold is the FMSY 

proxy, or F40%MSP. 


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TABLE 1—DESCRIPTION OF THE UPDATED POLLOCK STATUS DETERMINATION CRITERIA

Species Biomass target 

(Btarget) 

Minimum 

biomass 

threshold 

Maximum 

fishing 

mortality 

threshold 

Pollock ...................................................................................................................................... SSBMSY: SSB/R 

(40%MSP) 

1⁄2 Btarget F40%MSP

TABLE 2—NUMERICAL ESTIMATES FOR THE UPDATED POLLOCK STATUS DETERMINATION CRITERIA

Species 

Biomass target 

(SSBMSY or 

proxy) in mt 

Maximum 

fishing 

mortality 

threshold 

(FMSY or 

proxy) 

MSY in mt 

Pollock ......................................................................................................................................... 91,000 0.41 16,200 

2. Rebuilding Program for GB Yellowtail 

Flounder 

Recent estimates of the status of GB 

yellowtail flounder conducted by the 

Transboundary Resource Assessment 

Committee (TRAC) in July 2010 indicate 

that overfishing is not occurring, but 

that the stock is still in an overfished 

condition (TRAC 2010/05). This report 

concludes that it is not possible to 

rebuild this stock by 2014, the end of 

the eight-year rebuilding period 

originally adopted in FW 42 (October 

23, 2006; 71 FR 62156), with a 75 

percent probability of success even at F 

= 0. Accordingly, this action revises the 

GB yellowtail flounder rebuilding 

program to rebuild the stock by 2016, 

with a 50-percent probability of success. 

This revision extends the rebuilding 

program for this stock out to a 10-year 

rebuilding period and lowers the 

probability of success from 75 percent to 

50 percent in order to maximize the 

amount of GB yellowtail flounder that 

could be caught while the stock 

rebuilds. 

IFACA allows the Secretary and the 

Council to extend the rebuilding period 

for stocks, or portions of stocks, 

managed by the Understanding. 

However, because IFACA was enacted 

after FW 45 was developed and 

approved by the Council, the extension 

of the rebuilding period for GB 

yellowtail flounder was restricted to 10 

years. To maintain increases in GB 

yellowtail flounder catch comparable to 

the emergency increase for FY 11 after 

the emergency increase for FY 2011 

expires, the Council would need to 

consider revising the FMP’s rebuilding 

program and timeline for this stock 

consistent with the flexibility provided 

by IFACA. This would allow the 

Council to further mitigate the adverse 

economic impacts of efforts to rebuild 

this stock beyond that which was 

considered by the Council in the 

development of the revised GB 

yellowtail flounder rebuilding program 

included in FW 45. Therefore, NMFS 

recommends that the Council reevaluate 

the GB yellowtail flounder rebuilding 

program approved under FW 45, and 

consider extending the rebuilding 

program for this stock consistent with 

IFACA and implementing, if justified, 

the higher catch limits for this stock for 

future FYs. 

3. Overfishing Levels and ABCs for 

Particular Stocks 

This action revises the OFLs and 

ABCs of particular stocks, including GB 

cod, GB haddock, GB yellowtail 

flounder, and pollock for FYs 2011 and 

2012. Revisions to the OFLs and ABCs 

for pollock and GB yellowtail flounder 

are based upon the updated assessments 

and revised rebuilding strategies for 

these stocks, as described in Items 1 and 

2 of this preamble, respectively, and on 

the flexibility afforded by IFACA for GB 

yellowtail flounder, as described in Item 

5 of this preamble. Revisions to the 

OFLs and ABCs for the GB cod and GB 

haddock stocks are based upon updated 

TRAC assessments of the eastern 

components of the stock. It is 

anticipated that the FY 2012 values of 

the ABCs for GB cod, GB haddock, and 

GB yellowtail flounder will be revised 

during 2011, based on new 

transboundary stock assessments 

conducted by the TRAC, and will likely 

be specified again in conjunction with 

the FY 2012 U.S./Canada Management 

Area TAC levels, as further described in 

Item 5 of this preamble. Table 3 

contains the OFLs and ABCs for FYs 

2011 and 2012 approved under FW 45, 

with the exception of GB yellowtail 

flounder. 

For GB yellowtail flounder, the FY 

2011 U.S. ABC shown in Table 3 

represents a revised shared U.S./Canada 

Management Area TAC based upon, and 

consistent with, determinations and 

decisions about this stock by the TMGC, 

pursuant to the Understanding and the 

flexibility afforded by the IFACA. 

Because the U.S./Canada Management 

Area represents the entire stock area for 

GB yellowtail flounder, the shared U.S./ 

Canada Management Area TAC for this 

stock that is available to the U.S. fishery 

also represents the ABC for this stock. 

The revised ABC agreed to by the TMGC 

is consistent with the provisions of 

IFACA and the harvest strategy of the 

Understanding that requires overfishing 

to be prevented and the facilitation of 

the rebuilding of overfished stocks. 

NMFS is implementing the revised FY 

2011 ABC for this stock as a separate, 

but parallel, action to FW 45 pursuant 

to its emergency action authority 

specified in section 305(c) of the 

Magnuson-Stevens Act, as further 

described in the proposed rule for this 

action. As noted above, the duration of 

this proposed revision to the GB 

yellowtail flounder ABC is limited by 

the Magnuson-Stevens Act to 180 days 

(i.e., through October 24, 2011), but may 

be extended to make the revised ABC 

and ACL effective for the duration of FY 

2011 (through April 30, 2012). 


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TABLE 3—REVISIONS TO OVERFISHING LEVELS AND ACCEPTABLE BIOLOGICAL CATCHES

Stock 

OFL 

(mt, live weight) 

U.S. ABC 

(mt, live weight) 

FY 2011 FY 2012 FY 2011 FY 2012 

GB cod ............................................................................................................. 7,311 * 8,090 4,766 * 5,364 

GB haddock ..................................................................................................... 59,948 * 51,150 34,244 * 29,016 

GB yellowtail flounder: 

Proposed in FW 45 .................................................................................. 3,495 * 4,335 ** 1,458 * 1,222 

Emergency Action .................................................................................... 3,495 * 4,335 1,099 * 1,222 

White hake ....................................................................................................... 4,805 5,306 3,295 3,638 

Pollock ............................................................................................................. 21,853 19,887 16,900 15,400 

* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations. 

** This value represents the flexibility afforded by IFACA and described further in Item 5 of this preamble that supersedes the 1,099 mt FY 

2011 GB yellowtail flounder U.S. ABC originally adopted by the Council in FW 45. 

4. Revisions to ACLs 

Similar to adjustments in the OFLs 

and ABCs described in Item 3 of this 

preamble, this action revises the ACLs 

for several stocks, including GB cod, GB 

haddock, GB yellowtail flounder, white 

hake, and pollock. Pursuant to 

Magnuson-Stevens Act requirements 

and the process specified in 

Amendment 16, the ACLs adopted in 

this action are lower than the ABCs 

listed above for these stocks to account 

for management uncertainty, as detailed 

in Appendix II of FW 45 (see 

ADDRESSES) and summarized in the 

proposed rule for this action. For most 

stocks and components of the fishery 

(ABC components), the default 

adjustment (reduction) to the catch level 

for a fishery component to account for 

management uncertainty was 5 percent. 

For stocks with less management 

uncertainty, the adjustment was 3 

percent, and for those stocks or 

components with more management 

uncertainty, the adjustment was 7 

percent. The total ACL for a stock 

represents the catch limit for a 

particular FY, considering both 

biological and management uncertainty, 

and the limit includes all sources of 

catch (landed and discards) and all 

fisheries (commercial and recreational 

groundfish fishery, state-waters catch, 

and non-groundfish fisheries). 

The allocation of yellowtail flounder 

to the scallop fishery is not changed by 

this action. Thus, the SNE/MA 

yellowtail flounder allocations to the 

scallop fishery listed in Tables 5 and 6 

are the same amounts implemented 

under FW 44, with the allocation of 

SNE/MA yellowtail flounder remaining 

at 82 and 127 mt, live weight, during 

FYs 2011 and 2012, respectively; the GB 

yellowtail flounder allocations to the 

scallop fishery listed in Tables 11 and 

12 remain at 200.8 and 307.5 mt, live 

weight, during FYs 2011 and 2012, 

respectively. No specific allocation of 

Cape Cod (CC)/GOM yellowtail flounder 

is made to the scallop fishery, because 

the incidental catches of this stock by 

the scallop fishery are relatively low. 

Catches of this stock will be considered 

part of the ‘‘other sub-component’’ of the 

ACL. 

Current regulations set a cap on the 

amount of yellowtail flounder that may 

be harvested from the scallop access 

areas in the SNE/MA and GB yellowtail 

flounder stock areas. Specifically, 

current regulations cap yellowtail 

flounder harvest from scallop access 

areas at 10 percent of the ‘‘total TAC’’ for 

each of the stock areas. In light of the 

ACL components, ‘‘total TAC’’ means 

‘‘total ACL.’’ For FY 2011, this means 10 

percent of 1,416 mt (141.6 mt) for GB 

yellowtail flounder, as listed in Table 

11. 

This action updates the existing 

allocation of 0.2 percent of the U.S. ABC 

for GB and GOM haddock to the midwater trawl fishery based on changes to 

the GB haddock ABC described above. 

The values for the allocations to the 

mid-water trawl fishery listed in Table 

5 are slightly less than 0.2 percent, due 

to the 7-percent reduction of these 

allocations to account for management 

uncertainty for this stock. For example, 

the FY 2011 ABC of 32,244 mt was 

multiplied by 0.002 (32,244 mt × .002 = 

68.5 mt), and then reduced by 4.79 mt 

(68.5 mt × 0.07 = 4.79 mt) to arrive at 

the proposed allocation of 64 mt. 

Because the herring fishery already has 

AMs associated with this allocation that 

were developed as part of FW 43 

(August 15, 2006; 71 FR 46871), all of 

the haddock allocations to the midwater trawl fishery are characterized as 

sub-ACLs. 

Tables 5 through 8 list the 

distribution of the total ACL for stocks 

affected by measures in FW 45 to the 

groundfish fishery, the scallop fishery, 

the mid-water trawl herring fishery, 

state waters fisheries, and other fishery 

sub-components, such as exempted 

fisheries. A full list of the FY 2011 ACLs 

will be sent to NE multispecies permit 

holders and posted on the NMFS 

Northeast Regional Office Web site 

(http://www.nero.noaa.gov). As noted in 

the FW 44 final rule, while ACLs are 

specified through FY 2012 for most 

stocks, it is likely that the Council will 

adopt ACLs for FYs 2012 through 2014 

though a future Council action. 

Therefore, ACLs specified through FY 

2012 in FW 44 and this action will only 

be implemented if the anticipated 

Council action is delayed. In contrast, 

the pollock ACLs are not expected to be 

revisited until FY 2013, with any 

changes effective for FY 2014. The ACL 

listed in Table 5 for white hake corrects 

an error published in Table 4 of both the 

FW 44 proposed (February 1, 2010; 75 

FR 5021) and final rules, respectively, 

that listed the commercial sub-ACL for 

white hake for FY 2011 as 2,566 mt (the 

FY 2010 value) instead of the correct 

value of 2,974 mt. 

TABLE 5—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

GB cod ..................................................... 4,540 4,301 0 0 48 191 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23047 

TABLE 5—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011—Continued 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

GB haddock ............................................. 32,616 30,840 0 64 342 1,370 

SNE/MA yellowtail flounder ..................... 641 524 82 0 0 27 

White hake ............................................... 3,138 2,974 0 0 33 132 

Pollock ...................................................... 16,166 13,952 0 0 769 1,445 

TABLE 6—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2012 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

GB cod * ................................................... 5,109 4,841 0 0 54 215 

GB haddock * ........................................... 27,637 26,132 0 54 290 1,161 

SNE/MA Yellowtail flounder ..................... 936 759 127 0 0 40 

White hake ............................................... 3,465 3,283 0 0 36 146 

Pollock ...................................................... 14,736 12,612 0 0 754 1,370 

* Preliminary estimate that may be revised in 2012 based on TRAC and TMGC considerations. 

TABLE 7—POLLOCK TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2013 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

Pollock ...................................................... 14,927 12,791 0 0 756 1,380 

TABLE 8—POLLOCK TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2014 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

Pollock ...................................................... 15,308 13,148 0 0 760 1,400 

The commercial groundfish sub-ACL 

is further divided into the non-sector 

(common pool vessels) sub-ACL and the 

sector sub-ACL, based on the total 

vessel/permit enrollment in all sectors 

and the cumulative Potential Sector 

Contributions (PSCs) associated with 

those sectors. Table 9 lists the 

preliminary distribution of the 

groundfish sub-ACL between common 

pool and sectors based on rosters 

submitted to NMFS as of December 1, 

2010. FY 2011 sector rosters will not be 

finalized until May 1, 2011, because the 

owners of individual permits signed up 

to participate in sectors have until April 

30, 2011, to drop out of a sector and fish 

in the common pool and can either join 

a sector or change its sector affiliation 

based on an ownership change that 

occurred after December 1, 2011. 

Therefore, it is possible that the FY 2011 

sector sub-ACL listed in Table 9 and the 

final rule to approve the FY 2011 sector 

operations plans will be changed at a 

later date. Based on the final sector 

rosters, NMFS intends to publish a rule 

in early May 2011 to modify these subACLs, and notify the public if these 

numbers change. In addition, it is 

almost certain that all of the FY 2012 

sub-ACLs for the common pool and 

sectors will change and be re-specified 

prior to FY 2012 due to annual changes 

to the sector rosters and changes to the 

ABCs for GB cod, GB haddock, and GB 

yellowtail flounder based on the 

specification of Canadian TACs for 

these stocks, as described above in Item 

5 of this preamble. 

TABLE 9—PRELIMINARY DISTRIBUTION OF GROUNDFISH SUB-ACL BETWEEN COMMON POOL AND SECTOR VESSELS

[Mt, live weight]* 

Stock 

Groundfish sub-ACL Common pool sub-ACL Sector sub-ACL 

FY 2011 FY 2012 FY 2011 FY 2012 FY 2011 FY 2012 

GB cod ......................................................................................... 4,301 4,841 99 111 4,202 4,730 

GB haddock ................................................................................. 30,840 26,132 129 109 30,711 26,023 

GB yellowtail flounder: 


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23048 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

TABLE 9—PRELIMINARY DISTRIBUTION OF GROUNDFISH SUB-ACL BETWEEN COMMON POOL AND SECTOR VESSELS— 

Continued 

[Mt, live weight]* 

Stock 

Groundfish sub-ACL Common pool sub-ACL Sector sub-ACL 

FY 2011 FY 2012 FY 2011 FY 2012 FY 2011 FY 2012 

Proposed in FW 45 ** ........................................................... 790.7 686.3 23.7 20.6 767 665.7 

Emergency Action *** ............................................................ 1,142 1,142 17.4 17.4 1,124.6 1,124.6 

White hake ................................................................................... 2,974 3,283 35 39 2,939 3,244 

Pollock .......................................................................................... 13,952 12,612 138 125 13,814 12,487 

* Preliminary estimate that may be revised based on updated sector rosters and TRAC and TMGC considerations. 

** These values represent an increase from the ACLs adopted by the Council in FW 45, as described further in Item 5 of this preamble. 

*** These values represent an estimate of the ACLs adopted by the Council in FW 45 based upon preliminary sector roster information and do 

not reflect updated rosters submitted to NMFS. 

5. Annual Specifications for the U.S./ 

Canada Management Area 

Annual TACs for transboundary 

stocks jointly managed with Canada as 

part of the Understanding (Eastern GB 

cod, Eastern GB haddock, and GB 

yellowtail flounder) are determined 

through a process involving the Council, 

the TMGC, and the U.S./Canada 

Steering Committee. The recommended 

FY 2011 TACs for Eastern GB cod and 

Eastern GB haddock were based on the 

most recent stock assessments (TRAC 

Status Reports for 2010), and the fishing 

mortality strategy shared by NMFS and 

the DFO. The TMGC concluded that the 

most appropriate combined U.S./Canada 

TAC for Eastern GB cod and Eastern GB 

haddock for FY 2011 is 1,050 mt and 

22,000 mt, respectively. The annual 

allocation shares between countries for 

FY 2011 are based on a combination of 

historical catches (10-percent weighting) 

and resource distribution based on trawl 

surveys (90-percent weighting). 

Applying this formula results in an 

allocation of 19 percent of the shared 

Eastern GB cod TAC to the U.S. and 81 

percent for Canada, or a FY 2011 quota 

of 200 mt for the U.S. and 850 mt for 

Canada. Applying the same formula for 

Eastern GB haddock results in an 

allocation of 43 percent of the shared 

TAC to the U.S. and 57 percent to 

Canada, or a FY 2011 quota of 9,640 mt 

for the U.S. and 12,540 mt for Canada. 

For GB yellowtail flounder, the TMGC 

originally recommended, the Council 

adopted, and NMFS approved under 

FW 45, a combined U.S./Canada 

Management Area TAC of 1,900 mt, 

resulting in a FY 2011 quota of 1,045 mt 

for the U.S. and an 855 mt quota for 

Canada. However, the TMGC agreed to 

a revised shared GB yellowtail flounder 

TAC for FY 2011 of 2,650 mt that is 

being implemented through a parallel 

emergency action, based on the new 

flexibility provided by IFACA for FY 

2011, as discussed above in this 

preamble. 

Table 10 lists the FY 2011 U.S./ 

Canada Management Area TACs for all 

stocks managed by the Understanding, 

with the FY 2011 GB yellowtail 

flounder TAC reflecting the increased 

TAC recommended by the TMGC 

following its February 9, 2011, 

conference call. 

TABLE 10—2011 U.S./CANADA TACS (MT, LIVE WEIGHT) AND PERCENTAGE SHARES

[In parentheses] 

Eastern GB 

cod 

Eastern GB 

haddock 

GB Yellowtail 

flounder 

Proposed in FW 45 ......................................... Total Shared TAC .......................................... 1,050 22,000 1,900 

U.S. TAC ........................................................ 200 (19%) 9,640 (43%) 1,045 (55%) 

Canada TAC .................................................. 850 (81%) 12,540 (57%) 855 (45%) 

Emergency Action ........................................... Total Shared TAC .......................................... 1,050 22,000 2,650 

U.S. TAC ........................................................ 200 (19%) 9,640 (43%) 1,458 (55%) 

Canada TAC .................................................. 850 (81%) 12,540 (57%) 1,193 (45%) 

Because the U.S./Canada Management 

Area represents the entire stock area for 

GB yellowtail flounder, the U.S./Canada 

Management Area TAC that is available 

to the U.S. fishery also represents the 

ABC for this stock. After management 

uncertainty is deducted from the ABC, 

the amount that is available to the U.S. 

fishery represents the ACL for this 

stock. Thus, the revised GB yellowtail 

flounder TAC specified in this action 

also requires applicable changes to the 

ACL, and how the ACL for this stock is 

distributed to the various components of 

the fishery that catch this stock that 

were adopted by the Council in FW 45. 

The revised GB yellowtail flounder 

ACL, sub-ACL, and ACL subcomponents are specified in Tables 11 

and 12 for FYs 2011 and 2012, 

respectively. The revised U.S./Canada 

TAC for GB yellowtail flounder does not 

affect the sub-ACL for the scallop 

fishery specified by FW 45 as 200.8 mt. 

TABLE 11—GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011 

[Mt, live weight] 

Action Total ACL * Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

Proposed in FW 45 .................................. 1,045 790.7 200.8 0 0 53.5 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23049 

TABLE 11—GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011—Continued 

[Mt, live weight] 

Action Total ACL * Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

Emergency Action .................................... 1,416 1,142 200.8 0 0 73 

TABLE 12—REVISED GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2012 

[Mt, live weight] 

Action Total ACL Groundfish 

sub-ACL Scallop fishery 

Mid-water 

trawl herring 

fishery 

State waters 

ACL subcomponent 

Other ACL 

subcomponents 

Proposed in FW 45 .................................. 1,045 686.3 307.5 0 0 51.2 

Emergency Action .................................... 1,426 1,046 307.5 0 0 77 

* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations. 

The regulations related to the 

Understanding, promulgated by the 

final rule implementing Amendment 13, 

state that ‘‘any overages of the GB cod, 

haddock, or yellowtail flounder TACs 

that occur in a given fishing year will 

be subtracted from the respective TAC 

in the following fishing year.’’ Therefore, 

if an analysis of the catch of the shared 

stocks by U.S. vessels indicates that an 

over-harvest occurred during FY 2010, 

the pertinent components of the ACL 

would be adjusted downward in order 

to be consistent with the FMP and 

Understanding. If an adjustment to one 

of the FY 2011 TACs of cod, haddock, 

or yellowtail flounder is necessary, it 

will be done consistent with the 

Administrative Procedure Act, and the 

fishing industry will also be notified. 

6. Incidental Catch TACs and 

Allocations to Special Management 

Programs 

Incidental catch TACs are specified 

for certain stocks of concern (i.e., stocks 

that are overfished or subject to 

overfishing) for common pool vessels 

fishing in the special management 

programs (i.e., special access programs 

(SAPs) and the Regular B DAS Program), 

in order to limit the amount of catch of 

these stocks caught under such 

programs. The incidental catch TACs 

apply to catch (landings and discards) 

on trips that end on a Category B DAS 

(either Regular or Reserve B DAS). Catch 

of such stocks on trips that start under 

a Category B DAS and then flip to a 

Category A DAS do not accrue toward 

incidental catch TACs, but rather the 

overall common pool sub-ACL for that 

stock. Because pollock is no longer 

considered overfished or subject to 

overfishing, this action removes this 

species from the list of stocks of 

concern, and eliminates the incidental 

catch TAC for this stock. 

This final rule specifies incidental 

catch TACs applicable to the NE 

multispecies special management 

programs for FYs 2011 and 2012, based 

on the common pool sub-ACLs listed in 

Item 4 of this preamble (see Tables 13– 

15). As noted above, FY 2011 sector 

rosters will not be finalized until May 

1, 2011. Therefore, the amount of the 

common pool sub-ACL may change 

based upon changes to the number of 

vessels participating in the common 

pool during FY 2011. Based on the final 

rosters, NMFS will publish a rule in 

early May 2011 to modify these subACLs, and notify the public if these 

numbers change. 

TABLE 13—PRELIMINARY COMMON POOL INCIDENTAL CATCH TACS BY STOCK FOR FY 2011—2012 

[Mt, live weight] 

Stock Percentage of 

sub-ACL 

2011 

Incidental 

catch TAC 

2012 

Incidental 

catch TAC 

GB cod ......................................................................................................................................... 2 2.0 2.2 

GOM cod ..................................................................................................................................... 1 1.3 1.3 

GB yellowtail flounder .................................................................................................................. 2 0.3 0.3 

CC/GOM yellowtail flounder ........................................................................................................ 1 0.3 0.4 

SNE/MA yellowtail flounder ......................................................................................................... 1 1.1 1.7 

American plaice ........................................................................................................................... 5 3.9 4.1 

Witch flounder .............................................................................................................................. 5 1.2 1.2 

SNE/MA winter flounder .............................................................................................................. 1 7.3 7.6 

GB winter flounder ....................................................................................................................... 2 0.3 0.3 

White hake ................................................................................................................................... 2 0.7 0.8 


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23050 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

TABLE 14—DISTRIBUTION OF INCIDENTAL CATCH TACS AMONG SPECIAL MANAGEMENT PROGRAMS

[Mt, live weight] 

Stock Regular B 

DAS program 

Closed area I 

hook gear 

haddock SAP 

(%) 

Eastern U.S./ 

Canada 

haddock SAP 

(%) 

GB cod ......................................................................................................................................... 50 16 34 

GOM cod ..................................................................................................................................... 100 na na 

GB yellowtail flounder .................................................................................................................. 50 na 50 

CC/GOM yellowtail flounder ........................................................................................................ 100 na na 

SNE/MA yellowtail flounder ......................................................................................................... 100 na na 

Plaice ........................................................................................................................................... 100 na na 

Witch flounder .............................................................................................................................. 100 na na 

SNE/MA winter flounder .............................................................................................................. 100 na na 

GB winter flounder ....................................................................................................................... 50 na 50 

White hake ................................................................................................................................... 100 na na 

Pollock ......................................................................................................................................... 50 16 34 

TABLE 15—INCIDENTAL CATCH TACS FOR SPECIAL MANAGEMENT PROGRAMS BY STOCK FOR FY 2011–2012 

[Mt, live weight] 

Stock 

Regular B DAS program Closed area I hook gear 

haddock SAP 

Eastern U.S./Canada 

haddock SAP 

FY 2011 FY 2012 FY 2011 FY 2012 FY 2011 FY 2012 

GB cod ......................................................................................... 1.0 1.1 0.3 0.4 0.7 0.8 

GOM cod ...................................................................................... 1.3 1.3 na na na na 

GB yellowtail flounder .................................................................. 0.15 0.15 na na 0.1 0.1 

CC/GOM yellowtail flounder ........................................................ 0.3 0.4 na na na na 

SNE/MA yellowtail flounder ......................................................... 1.1 1.7 na na na na 

American plaice ........................................................................... 3.9 4.1 na na na na 

Witch flounder .............................................................................. 1.2 1.2 na na na na 

SNE/MA winter flounder .............................................................. 7.3 7.6 na na na na 

GB winter flounder ....................................................................... 0.1 0.2 na na 0.1 0.2 

White hake ................................................................................... 0.7 0.8 na na na na 

In addition to the incidental catch 

TAC for GB cod, overall fishing effort by 

both common pool and sector vessels in 

the Closed Area I Hook Gear Haddock 

SAP is also controlled by an overall 

TAC for GB haddock, the target species 

for this SAP. For FY 2011, the overall 

haddock TAC for the Closed Area I 

Hook Gear Haddock SAP applicable to 

both common pool and sector vessels 

participating in this SAP is 3157.5 mt 

(6,961,096 lb or 3,157,553 kg) based on 

TACs specified in FW 44. Once this 

overall haddock TAC is caught, the 

Closed Area I Hook Gear Haddock SAP 

will be closed to all groundfish vessels 

for the remainder of FY 2011. 

7. Great South Channel Exemption Area 

This action eliminates the yellowtail 

flounder spawning closure areas within 

the Great South Channel Exemption 

Area, and allows all scallop vessels, 

including limited access general 

category (LAGC) scallop vessels, to fish 

within this area throughout the entire 

year in accordance with applicable 

scallop regulations. Since the August 

31, 2006, rulemaking (71 FR 51779) that 

created the Great South Channel 

Exemption Area and the associated 

yellowtail flounder spawning closure 

areas, the general category scallop 

permits have become limited access 

permits subject to an individual fishing 

quota (IFQ) that limit the amount of 

scallops and, therefore, regulated 

species and ocean pout, particularly 

yellowtail flounder, caught by these 

vessels. Thus, the main justification for 

the spawning protection areas for LAGC 

scallop vessels is no longer relevant. 

8. GOM Cod Spawning Protection Area 

To protect spawning aggregations of 

GOM cod and prevent fishing from 

interfering with spawning activity, this 

final rule creates the GOM Cod 

Spawning Protection Area. This area is 

rectangular in shape and is located just 

south of the Isle of Shoals off the New 

Hampshire coastline, with its long axis 

oriented in a northwest to southeast 

direction. All commercial fishing 

vessels using gear capable of catching 

groundfish are prohibited from fishing 

within the proposed area from June 1 

through June 30 of each year, while all 

recreational vessels (private and charter/ 

party vessels) are prohibited from using 

gear capable of catching groundfish in 

the area from April 1 through June 30 

of each year. For commercial vessels, 

only vessels fishing with ‘‘exempted 

gear,’’ as defined in the current 

regulations, are allowed into this area 

during the closure periods. Exempted 

gear includes pelagic hook and line 

gear, pelagic longline gear, spears, rakes, 

diving gear, cast nets, tongs, harpoons, 

weirs, dipnets, stop nets, pound nets, 

pelagic gillnets, pots and traps, shrimp 

trawls with a properly configured grate, 

and surfclam and ocean quahog dredges. 

Therefore, because midwater trawl gear 

and purse seine gear is not listed as 

exempted gear, vessels fishing with 

these gear types may not fish in this area 

during June of each year. Only pelagic 

hook-and-line gear, as defined in the 

current regulations, is allowed to be 

used in the area by recreational vessels. 

The catch or possession of any regulated 

species or ocean pout by vessels using 

the exempted gear from April 1 through 

June 30 of each year is prohibited. Both 

recreational and commercial vessels are 

allowed to transit the proposed area, 

provided all gear is stowed according to 

existing regulations. 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23051 

9. Handgear A and B Measures 

Cod Trip Limit 

Through this final rule, the cod trip 

limits applicable to NE multispecies 

Handgear A (limited access) and B 

(open access) vessels are revised to be 

specific to either the GOM or GB cod 

stock, including any adjustments to 

such trip limits. Handgear A vessels are 

subject to an initial cod limit of 300 lb 

(135 kg) per trip for both the GOM and 

GB cod stocks, until NMFS adjusts the 

cod trip limit applicable to common 

pool vessels fishing under a NE 

multispecies DAS for either of these 

stocks below 300 lb (135 kg) per trip. 

Once either the GOM or the GB cod trip 

limit for common pool DAS vessels is 

reduced below 300 lb (135 kg) per DAS, 

the applicable cod trip limit for 

Handgear A vessels will be adjusted to 

be the same as the daily limit for 

common pool DAS vessels. For 

example, if only the GOM cod trip limit 

for NE multispecies DAS vessels was 

reduced to 250 lb (113.4 kg) per DAS, 

then the cod trip limit for a vessel 

issued a Handgear A category permit 

that is fishing in the GOM Regulated 

Mesh Area (i.e., the area specified for 

the GOM cod trip limit) would also be 

reduced to 250 lb (113.4 kg) per trip; 

however, under this example, the cod 

trip limit for a Handgear A vessel 

fishing for GB cod south of the GOM 

Regulated Mesh Area (RMA) (the GB 

cod stock area is considered the GB, 

SNE, and MA RMAs) would be 

maintained at 300 lb (135 kg) per trip. 

The initial Handgear B cod limit for 

both the GOM and GB stocks is 

maintained at 75 lb (90.7 kg) per trip, 

but will be adjusted proportional 

(rounded up to the nearest 25 lb (11.4 

kg)) to any changes in the daily GOM or 

GB cod trip limits for DAS vessels in the 

future, as necessary. For example, if the 

GOM cod trip limit was reduced by 50 

percent from 800 lb (362.9 kg) per DAS 

to 400 lb (181.4 kg) per DAS, then the 

cod trip limit for a Handgear B vessel 

fishing in the GOM Regulated Mesh 

Area would also be reduced by 50 

percent to 37.5 lb (17 kg), rounded to 

the nearest 25 lb (11.3 kg), or 50 lb (22.7 

kg) per trip. In this example, the cod trip 

limit for a Handgear B vessel fishing for 

GB cod south of the GOM RMA would 

be maintained at 75 lb (90.7 kg) per trip. 

To fish for GB cod south of the GOM 

Regulated Mesh Area for a particular 

period of time, the owner or operator of 

a Handgear A or B vessel must obtain 

and retain on board a paper letter of 

authorization (LOA) from the Regional 

Administrator (RA) to fish, unless 

otherwise noted below. The minimum 

participation period for this LOA is 7 

consecutive days to minimize the 

administrative burden of this provision, 

consistent with existing practice for 

LOAs issued to DAS vessels. Once a 

vessel owner or operator has obtained a 

paper LOA to fish south of the GOM 

RMA, the owner or operator may not 

fish in the GOM RMA for the duration 

of the LOA. This requirement is 

necessary to more effectively enforce 

this measure. Alternatively, the owner 

or operator of a Handgear A permitted 

vessel, who does not obtain the paper 

LOA, but elects or is required to have 

a VMS may fish for GB cod south of the 

GOM RMA by declaring an intent to fish 

for GB cod south of the GOM RMA prior 

to each trip via a vessel monitoring 

system (VMS) (i.e., when fishing in 

multiple broad stock areas on the same 

trip). If a vessel declares via VMS 

instead of obtaining a paper LOA, this 

VMS declaration is required on a tripby-trip basis, and no minimum 

participation period is necessary. These 

declarations enable at-sea enforcement 

personnel to identify the applicable cod 

trip limits and effectively enforce the 

appropriate regulations during boarding 

operations. 

Access to Seasonal Closure Areas 

To ensure that handgear-permitted 

vessels are provided an opportunity to 

fish during at least the early part of the 

FY, this action exempts both Handgear 

A and B vessels from the GB Seasonal 

Closure Area defined in § 648.81(g), and 

allows Handgear A vessels to also fish 

in the Sector Rolling Closure Areas 

defined in § 648.81(f)(2)(vi)(A) through 

(C), and depicted in section 4.3.3 of FW 

45. These latter areas represent smaller 

portions of the GOM Rolling Closure 

Areas, and enable Handgear A vessels 

fishing in the GOM a greater chance at 

catching some of the available sub-ACLs 

for cod and haddock during a particular 

FY before such trip limits are reduced 

to prevent the ACL from being 

exceeded. 

10. Dockside/Roving Monitor 

Requirements 

Delay in Requirement for Industry To 

Fund Dockside/Roving Monitors 

To address concerns regarding the 

ability of the fishing industry to pay for 

the costs of a dockside/roving 

monitoring program, as originally 

implemented under Amendment 16 in 

2010, this action delays the industry’s 

responsibility for paying for dockside/ 

roving monitoring coverage until FY 

2013. None of the costs associated with 

dockside/roving monitors during FYs 

2011 and 2012 will be imposed upon 

the owner or operator of a NE 

multispecies vessel. NMFS will attempt 

to provide sufficient dockside/roving 

monitoring coverage to observe the 

offloads of up to 100 percent of sector 

trips and, starting in FY 2012, common 

pool trips as well, if funds are available. 

If funds are not available for monitoring 

100 percent of commercial groundfish 

trips, NMFS must first provide 

dockside/roving monitor coverage to 

trips that do not have an observer, at-sea 

monitor, or an approved electronic 

monitoring program. To enable 

dockside/roving monitors to more easily 

identify trips that are assigned an 

observer or at-sea monitor, vessels must 

declare whether an observer or at-sea 

monitor has been assigned to that trip 

via the trip-start hail report. For FY 

2011, NMFS estimates that it has 

sufficient funding to cover 

approximately 100 percent of sector 

trips that are not assigned an observer 

or at-sea monitor. NMFS will specify 

coverage levels for FY 2012 based upon 

available NMFS funding. 

Dockside/Roving Monitoring Program 

Requirements Beginning in FY 2013 

Starting in 2013, sectors must develop 

and pay for a dockside/roving 

monitoring program as part of their 

annual operations plans, common pool 

vessels will be subject to dockside/ 

roving monitoring upon the transition to 

a trimester TAC AM, vessels must 

comply with the trip-start and trip-end 

hail reporting requirements associated 

with at-sea and dockside monitoring 

programs, and dockside/roving 

monitoring service providers must 

observe the landings of 20 percent of all 

common pool and sector trips in a 

statistically random manner. To 

facilitate administration and compliance 

with the dockside/roving monitoring 

operational standards specified at 

§ 648.87(b)(5), this action revises the 

regulations at § 648.82(n)(2)(iv) to 

clearly state that the owner or operator 

of each common pool vessel subject to 

dockside/roving monitoring 

requirements must contract for such 

services with a service provider 

approved by NMFS by 2013. The need 

for vessel owners to contract with a 

specific service provider is necessary in 

the absence of any NMFS-controlled 

dockside/roving monitoring program in 

which NMFS can act as a mediator 

between the fishing industry and 

approved service providers. Further, 

because each individual permit is 

considered a separate legal entity, 

NMFS is not inclined to mandate that 

common pool vessels use a particular 

service provider in a particular FY in 

order to increase competition among 

service providers and potentially 


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decrease costs to the affected vessel 

owners. Groups of vessel owners, 

however, may elect to contract with the 

same service provider to help lower the 

costs associated with such 

requirements. 

Exemption of the Dockside/Roving 

Monitor Requirements for Certain 

Permit Categories 

Vessels issued a limited access NE 

multispecies Handgear A, Handgear B, 

and Small Vessel category permit are 

exempt from any dockside/roving 

monitoring requirements when 

operating in the common pool. Given 

this exemption, it is not possible for 

dockside/roving monitor service 

providers to provide statistically 

random coverage of all common pool 

trips, as required under Amendment 16, 

because not all common pool trips are 

subject to dockside/roving monitoring 

requirements. Therefore, the dockside/ 

roving monitoring coverage regulations 

have been revised to accommodate this 

exemption, and specify that service 

providers must provide random 

coverage of all trips subject to the 

dockside/roving monitoring 

requirements. 

Trip-End Hail Requirement 

To facilitate dockside intercepts by 

both state and Federal enforcement 

personnel, beginning in FY 2011, all 

sector vessels and common pool vessels 

fishing under a DAS must submit a tripend hail report via VMS prior to 

returning to port on each trip. Vessels 

subject to dockside monitoring (i.e., 

sector vessels starting in FY 2010 and 

common pool vessels starting in FY 

2012) are required to submit both a tripstart and a trip-end hail report for that 

trip, consistent with current practice. 

The trip-end hail report must contain 

the same information as the trip-end 

hail report implemented by Amendment 

16. 

Inspection of Fish Holds 

Amendment 16 established approval 

requirements for entities providing 

dockside/roving monitoring services. 

These standards included hiring 

individual dockside monitors that were 

capable of climbing ladders and 

inspecting fish holds. For FY 2010, 

NMFS developed operational standards 

necessary to implement the Amendment 

16 dockside monitoring provisions, 

based on a pilot dockside/roving 

monitoring program conducted during 

the summer of 2009. These standards 

did not require dockside monitors to 

inspect fish holds for FY 2010. 

However, based on further evaluation of 

the performance of the dockside 

monitoring program and consideration 

of concerns expressed by enforcement 

personnel, this action now requires that 

dockside monitors inspect the fish holds 

for any trip that is assigned a dockside/ 

roving monitor beginning in FY 2011. 

This requirement will enhance the 

enforceability of existing provisions and 

minimize the incentives to underreport/misreport the amount of 

regulated species landed. 

11. Sector Measures 

Distribution of the PSC From Cancelled 

Permits 

As described in Amendment 16, a 

PSC represents an individual permit’s 

portion of the total historical landings of 

each regulated species or ocean pout 

stock during FYs 1996–2006 by all 

permits, including those in confirmation 

of permit history (CPH), that were 

eligible to participate in the NE 

multispecies fishery as of May 1, 2008. 

If a permit had been cancelled after May 

1, 2008, its historic landings between 

FYs 1996–2006 have still been used to 

calculate the total landings by eligible 

permits. 

As noted above, the current 

regulations calculate the ACL available 

to sector and common pool vessels 

based on the cumulative PSCs of each 

permit participating in each sector. By 

default, if the owner of a particular 

permit has not elected to participate in 

a sector, that permit is considered to be 

participating in the common pool, and 

its PSC contributes to the sub-ACL 

available to the common pool at large. 

Similarly, if a permit or CPH is 

permanently cancelled for any reason, 

that permit or CPH cannot participate in 

sectors, or any fishery, and the PSC is 

used to contribute to the sub-ACL 

available to the common pool. Thus, the 

PSCs of cancelled permits artificially 

inflate the PSCs of those permits 

operating in the common pool and are 

not equitably distributed among all 

permits remaining in the fishery. 

Beginning in FY 2011, the PSC of all 

valid permits, including those held in 

CPH, that are eligible to participate in 

the fishery must be recalculated as of 

June 1 of each year, unless another date 

is specified by the RA, to redistribute 

the landings histories of cancelled 

permits to all remaining eligible 

permits. To do so, the PSCs for each 

stock calculated pursuant to the process 

specified in Amendment 16 must be 

multiplied by a factor of ‘‘1/PSC of the 

remaining permits.’’ These recalculated 

PSCs shall then be used to calculate 

ACEs for each sector during the 

following FY. For FY 2012 and beyond, 

a PSC that is calculated on June 1, shall 

affect sector ACE for the FY that begins 

on May 1, of the following year. 

This provision means that each 

permit’s PSC may increase on a yearly 

basis to reflect its higher portion of the 

historic landings of each regulated 

species and ocean pout stock due to the 

removal of the landings histories of any 

permits that were cancelled by June 1 of 

each year. This will ensure that the 

yearly PSC calculations reflect eligible 

permits at the beginning of each FY 

(May 1), and allow NMFS time to 

process such renewals. On or about July 

1 of each year, NMFS will inform permit 

holders of updated PSCs through a 

permit holder letter sent to owners of a 

valid limited access NE multispecies 

permit or CPH. 

The FW 45 proposed rule specified 

that the RA would recalculate FY 2011 

PSCs for each permit using valid 

permits as of May 1, 2011, to update 

PSCs for FY 2011 and reflect permits 

cancelled through FY 2010. However, to 

ensure that permit owners had sufficient 

information to make informed decisions 

about whether or not to participate in 

sectors before the start of FY 2011 on 

May 1, 2011, the RA recalculated FY 

2011 PSCs for each permit using valid 

permits as of February 11, 2011, to 

reflect permits cancelled through that 

date. This information was sent out to 

permit holders on February 11, 2011, to 

facilitate their decision to join a sector 

based on measures proposed in FW 45. 

The RA will recalculate PSCs for each 

permit as of June 1, 2011, to account for 

permits cancelled through FY 2010 and 

determine the PSCs that will be used to 

calculate FY 2012 sector ACE for each 

stock, consistent with the procedures 

outlined above. 

Operations Plan Requirements 

Amendment 16 specified that sectors 

must submit final rosters, proposed 

operations plans, including rosters and 

associated environmental analyses by 

September 1, so that NMFS could 

review such documents as part of the 

process to approve sector operations for 

the following FY. Based on industry 

input, this action increases the 

flexibility of these deadlines by 

requiring sectors to submit preliminary 

rosters and proposed operations plans to 

NMFS by September 1, and final rosters 

by December 1 of each year. Following 

further industry input submitted during 

the public comment period for this 

action and ongoing discussions with 

industry participants, NMFS will allow 

for a limited opportunity for additional 

changes to FY 2011 sector rosters to 

accommodate changes in vessel 

ownership that occurred after the 

submission of final sector rosters on 


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December 1, 2010. This window to 

reopen FY 2011 sector rosters began on 

March 24, 2011, and will end on April 

30, 2011. A sector is not required to 

accept additional changes to sector 

rosters during this window; each sector 

may decide whether or not a member 

may leave the sector, and whether or not 

to accept new members. Reopening the 

rosters is intended to provide additional 

flexibility to new permit holders 

without disrupting the organization of 

sectors. An announcement of this 

limited opportunity to reopen sector 

rosters was sent out to all sector 

managers on March 16, 2011, and to all 

limited access NE multispecies permit 

holders on March 23, 2011. In future 

years, a window for additional sector 

roster changes would begin with the 

publication of proposed measures for 

the common pool for the following year 

and end on April 30, and would be 

limited to ownership changes occurring 

after the December 1 roster deadline. 

These measures are designed to provide 

NMFS with the information it needs to 

review or conduct environmental 

analyses associated with draft sector 

operations plans, while allowing vessel 

owners additional time to decide 

whether to participate in sectors, or 

which sector to join during the 

following FY. 

Sector Exemptions 

To reduce dockside/roving 

monitoring costs, especially due to 

infrequent landings of regulated species 

in more southerly ports, this action 

allows sectors to request an exemption 

from the dockside/roving monitoring 

requirements implemented under 

Amendment 16. Therefore, because 

Amendment 16 specified that sectors 

cannot request an exemption from the 

existing reporting requirements, this 

rule removes dockside/roving 

monitoring requirements from the list of 

reporting requirements at 

§ 648.87(c)(2)(i). This enables sectors to 

request exemptions, or at least partial 

exemptions, from the dockside/roving 

monitoring requirements to minimize 

monitoring costs for sector trips 

targeting monkfish in southern waters, 

for example. 

12. Authorization of New Sectors 

This final rule authorizes the creation 

of five new sectors, include the State of 

Maine Permit Banking Sector, the State 

of Rhode Island Permit Bank Sector, the 

State of New Hampshire Permit Bank 

Sector, the Commonwealth of 

Massachusetts Permit Bank Sector, and 

the Sustainable Harvest Sector III, as 

described in Section 4.2.1 of the FW 45 

EA. All operational aspects of these 

sectors are specified in their annual 

operations plans, as submitted to NMFS. 

Details of these operations plans were 

published in a parallel rulemaking, as 

noted above. Vessels/permits 

participating in these sectors must 

comply with the existing sector 

provisions, unless otherwise exempted 

by a future action. 

13. Measures for FY 2011 Under RA 

Authority 

The FMP provides authority for the 

RA to implement certain types of 

inseason management measures for the 

common pool fishery, the U.S./Canada 

Management Area, and Special 

Management Programs, as described 

further below. Although these measures 

were not proposed by the Council for 

implementation through FW 45, this 

final rule makes the public aware of 

measures implemented for FY 2011 by 

the RA. Once effective, the RA may 

revise these measures, as necessary, to 

ensure that the objectives of the FMP, 

including preventing the sub-ACLs from 

being exceeded, are met during FY 

2011. Any necessary adjustments will 

be implemented through an inseason 

action consistent with the 

Administrative Procedures Act and 

communicated to the affected public. 

Initial FY 2011 Common Pool Trip 

Limits 

The current regulations at § 648.86(o) 

allow the RA to revise trip limits 

applicable to common pool vessels if 

the RA projects that the catch of any NE 

multispecies stock allocated to common 

pool vessels will exceed the pertinent 

sub-ACL in order to prevent exceeding 

the common pool sub-ACL. Table 16 

summarizes the initial FY 2011 common 

pool trip limits as adjusted by the RA. 

These initial trip limits were developed 

after considering changes to the FY 2011 

common pool sub-ACLs and sector 

rosters, catch rates of these stocks 

during FY 2010, price of fish during FY 

2010, bycatch considerations, the 

potential for differential DAS counting 

during FY 2011, public comment on 

proposed trip limits, and other available 

information. Although the slow catch 

rate of SNE/MA yellowtail flounder by 

common pool vessels in FY 2010 

suggests that the trip limit could be 

increased substantially to increase the 

catch of this stock in FY 2011, due to 

concerns that a potential increased SNE/ 

MA yellowtail flounder trip limit would 

increase the bycatch and discard of 

SNE/MA winter flounder (a stock that 

cannot be possessed by any vessel to 

help ensure this stock rebuilds 

according to the approved rebuilding 

program), only a small increase in the 

trip limit for this stock is implemented 

at this time. 

TABLE 16—INITIAL FY 2011 TRIP LIMITS FOR THE COMMON POOL

Stock Initial FY 2011 limit 

GOM cod ................................................................................................. 500 lb (226.8 kg) per DAS, up to 2,000 lb (907.2 kg) per trip. 

GB cod ..................................................................................................... 2,000 lb (907.2 kg) per DAS, up to 20,000 lb (9,072 kg) per trip. 

GOM haddock .......................................................................................... 1,000 lb (453.6 kg) per trip. 

GB haddock ............................................................................................. 10,000 lb (4,535.9 kg) per trip. 

GOM winter flounder ............................................................................... 250 lb (113.4 kg) per trip. 

GB winter flounder ................................................................................... 1,000 lb (453.6 kg) per trip. 

CC/GOM yellowtail flounder .................................................................... 500 lb (226.8 kg) per DAS, up to 2,000 (907.2 kg) per trip. 

GB yellowtail flounder .............................................................................. 1,500 (680.4 kg) per trip. 

SNE/MA yellowtail flounder ..................................................................... 500 lb (226.8 kg), up to 2,000 (907.2 kg) per trip. 

American plaice ....................................................................................... unrestricted. 

Pollock ..................................................................................................... unrestricted. 

Witch flounder .......................................................................................... 250 lb (113.4 kg) per trip. 

White hake ............................................................................................... 1,500 lb (680.4 kg) per trip. 

Redfish ..................................................................................................... unrestricted. 


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23054 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

Differential DAS Counting for Common 

Pool Vessels 

Following the implementation of 

Amendment 16 measures, the FMP 

requires that the RA implement a 

differential DAS counting rate for FY 

2011 if the catch of the relevant stocks 

by common pool vessels is projected to 

exceed the pertinent common pool 

groundfish sub-ACLs during FY 2010. 

The differential DAS counting factor 

that will apply to common pool vessels 

is based on the proportion of the subACL projected to be caught by common 

pool vessels during FY 2010, rounded to 

the nearest tenth. If the RA projects that 

common pool catch will exceed the subACL for multiple regulated species 

within a particular area, then the most 

restrictive differential DAS counting 

factor will apply. 

Catch information available through 

March 19, 2011, indicates that common 

pool catch of witch flounder during FY 

2010 has exceeded the witch flounder 

sub-ACL by 32 percent. As defined at 

§ 648.82(n)(1)(i), any differential DAS 

counting rate to address an overage of 

the witch flounder sub-ACL shall be 

applied to Category A DAS used in the 

Offshore GOM Differential DAS Area, 

the Offshore GB Differential DAS Area, 

and the Inshore GB Differential DAS 

Area. Therefore, beginning on May 1, 

2011, any Category A DAS used by 

common pool vessels in the Offshore 

GOM Differential DAS Area, the 

Offshore GB Differential DAS Area, and 

the Inshore GB Differential DAS Area 

shall be charged at a rate of 1.3:1, or 31 

hours for each 24 hr fished (i.e., 1.3 

times 24-hr DAS counting), for the time 

spent fishing in the applicable DAS 

counting areas specified above. 

Differential DAS shall accrue based 

upon the first VMS position into the 

applicable differential DAS counting 

area, and the first VMS position outside 

of the applicable differential DAS 

counting area. NMFS provides an 

estimate of the status of the common 

pool catch throughout the year at the 

following address: http://

www.nero.noaa.gov/ro/fso/reports/

common_pool/Common_Pool_

Summary.html. 

Delayed Opening of the Eastern U.S./ 

Canada Area 

The regulations at § 648.85(a)(3)(iv)(D) 

provide the RA the authority to adjust 

various measures in order to optimize 

the harvest of the transboundary stocks 

managed under the Understanding. 

Pursuant to this authority, NMFS is 

postponing the opening of the Eastern 

U.S./Canada Area for common pool 

vessels fishing with trawl gear in FY 

2011 from May 1, 2011, through July 31, 

2011. This measure delays trawl fishing 

in the Eastern U.S./Canada Area during 

the time when cod bycatch is likely to 

be very high, and should prolong access 

to this area in order to maximize the 

catch of available cod, haddock, and 

yellowtail flounder, as well as other 

valuable stocks such as winter flounder. 

Similar to restrictions implemented in 

FY 2009 and FY 2010, the proposed rule 

for this action proposed to limit the 

amount of cod that could be caught by 

common pool vessels fishing with nontrawl gear in the Eastern U.S./Canada 

Area prior to August 1, 2011, to 5 

percent of the Eastern GB cod TAC 

available for common pool vessels. This 

was intended to further constrain 

fishing mortality on GB cod and prolong 

access to this area. The proposed rule 

for this action inaccurately specified 

this cod bycatch limit as 10 mt, but, 

inadvertently, that was based upon 5 

percent of the Eastern GB cod TAC 

available to all groundfish vessels, not 

just common pool vessels as intended. 

The correct number for cod bycatch for 

just common pool vessels in FY 2011 is 

477 lb (216.4 kg), based on a calculation 

of vessels that will be in the common 

pool according to sector rosters 

submitted to NMFS as of December 1, 

2010. Because this bycatch amount is 

very low and difficult to effectively 

monitor in a timely manner and because 

no common pool vessels actually fished 

in the Eastern U.S./Canada Area during 

FY 2010, NMFS has not implemented 

the proposed cod bycatch limitation for 

common pool vessels fishing with nontrawl gear in the Eastern U.S./Canada 

Area from May 1, 2011, through July 31, 

2011. 

Closed Area II Yellowtail Flounder/ 

Haddock SAP 

The current regulations provide the 

RA with the authority to determine the 

total number of allowed trips by 

common pool vessels into the Closed 

Area II Yellowtail Flounder/Haddock 

SAP to target yellowtail flounder based 

on several criteria, including the GB 

yellowtail flounder TAC and the 

amount of GB yellowtail flounder 

caught outside of the SAP. As 

implemented in 2005 by FW 40B (June 

1, 2005; 70 FR 31323), no trips to this 

SAP should be allocated if the available 

GB yellowtail flounder catch, after 

considering the amount of catch of this 

stock that would occur outside of the 

SAP, is insufficient to support at least 

150 trips with a 15,000-lb (6,804-kg) trip 

limit (i.e., 2,250,000 lb (1,020,600 kg)). 

The difference between the minimum 

level of GB yellowtail flounder sub-ACL 

necessary to allow targeting of 

yellowtail flounder within the Closed 

Area II Yellowtail Flounder/Haddock 

SAP and the updated FY 2011 GB 

yellowtail flounder sub-ACL of 1,142 mt 

(2,517,679 lb; or 1,142,019 kg) specified 

in Table 11 is only 267,679 lb (121,419 

kg). Based on past fishing practices, it is 

likely that catch rates outside of this 

SAP are more than adequate to fully 

harvest the FY 2011 GB yellowtail 

flounder sub-ACL, leaving little, if any, 

quota available to open this SAP to 

targeting GB yellowtail flounder. Thus, 

the FY 2011 GB yellowtail flounder subACL is considered insufficient to 

warrant opening of this SAP to targeting 

yellowtail flounder. Therefore, based on 

existing authority, no trips are allocated 

by this final rule to target yellowtail 

flounder within the Closed Area II 

Yellowtail Flounder/Haddock SAP for 

FY 2011. Further, as required at 

§ 648.85(a)(3)(iii)(B) and (x)(A), this 

final rule specifies that the SAP is open 

from August 1, 2011, through January 

31, 2012, and prohibits the use of the 

flounder net by both common pool and 

sector vessels in this SAP during FY 

2011. All limited access NE 

multispecies vessels can still fish in this 

SAP during FY 2011, but must only fish 

with a haddock separator trawl, a Ruhle 

trawl, or hook gear while in the SAP 

area. 

14. Corrections and Clarifications 

This final rule corrects or clarifies a 

number of inadvertent errors, omissions, 

and provisions in existing regulations in 

order to ensure consistency with, and 

accurately reflect the intent of previous 

actions under the FMP, or to more 

effectively administer and enforce 

existing provisions pursuant to the 

authority provided to the Secretary in 

section 305(d) of the Magnuson-Stevens 

Act. The following measures are listed 

in the order in which they appear in the 

regulations. The proposed rule for this 

action discusses the reason why such 

corrections are necessary. 

Amendment 16 requires the owner or 

operator of any vessel issued a limited 

access NE multispecies permit fishing 

on either a common pool or a sector trip 

to declare its intent to fish within one 

or more of the NE multispecies broad 

stock areas (BSAs) and provide the 

vessel trip report (VTR) serial number 

for the first page of the VTR for that 

particular trip via VMS or interactive 

voice response (IVR) system prior to 

leaving port at the start of a fishing trip 

and to submit a VMS catch report 

detailing the amount of each species 

retained in each BSA for trips that fish 

in more than one BSA per trip. To 

eliminate duplicative reporting 

requirements, this final rule modifies 


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the timing requirements for the 

submission of the VMS catch report in 

§ 648.10(k)(1) to require all limited 

access NE multispecies vessels, 

regardless of the number of broad stock 

areas fished, to submit the VMS catch 

report listing the VTR serial number 

applicable for that trip prior to crossing 

the VMS demarcation line upon its 

return to port following each fishing trip 

on which regulated species were caught. 

To further clarify the administration 

and enforcement of dockside/roving 

monitoring provisions originally 

implemented under Amendment 16 and 

revised by this action, this action adds 

a prohibition at § 648.14(k)(18)(i)(D) to 

state that, if the offloads of a particular 

trip are assigned to be monitored by a 

dockside/roving monitor, the vessel 

cannot offload its catch until the 

assigned dockside/roving monitor 

arrives at the designated offloading site 

specified by the vessel owner or 

operator. 

To close a perceived loophole that 

could have allowed a vessel carrying 

passengers for hire to possess and land 

fish smaller than the minimum fish size 

specified for commercial vessels and to 

sell their catch from such operations, 

this action revises the regulations at 

§ 648.82(a)(2) to also state that, in 

addition to a vessel fishing under a NE 

multispecies DAS, a vessel issued a NE 

multispecies limited access permit may 

not fish under a sector trip or under the 

limited access NE multispecies Small 

Vessel Category or Handgear A permits, 

if such vessel carries passengers for hire 

for any portion of a fishing trip. 

This action modifies the phrase 

‘‘vessels participating in sectors’’ to read 

‘‘vessels/permits participating in 

sectors’’ in the regulations at 

§§ 648.87(b)(1)(i)(A) and 

648.90(a)(4)(iii)(E)(2) to reflect that 

vessels issued permits, including those 

held in CPH, can participate in sectors. 

To provide more flexibility to sectors, 

Amendment 16 allowed the transfer of 

ACE between sectors, and also 

permitted carrying over ACE from one 

FY to the next. To clarify how the ACE 

carry over provision shall be applied, 

this action revises the regulations at 

§ 648.87(b)(1)(i)(C) to state that a NE 

multispecies sector may carry over up to 

10 percent of its allocated ACE for each 

stock, with the exception of GB 

yellowtail flounder, into the following 

FY. This provision limits the 

applicability of ACE carry over to only 

10 percent of the ACE allocated to a 

sector at the start of a FY and not 10 

percent of the total ACE available to a 

sector at the end of the fishing year, 

which may include any ACE acquired 

from another sector as part of an ACE 

transfer. The preamble of the proposed 

rule for this action included text that 

could be interpreted to mean that a 

sector could not carry over any ACE if 

it had harvested more than 90 percent 

of its original ACE allocation for that 

stock by the end of the FY. This 

interpretation does not reflect the intent 

of NMFS in clarifying the amount of 

ACE that can be carried over into the 

next FY. Consistent with the proposed 

regulatory text, the intent of NMFS was 

to merely clarify that the amount of ACE 

that can be carried over for each stock 

shall be calculated based upon the 

amount of ACE originally allocated to 

that sector. For example, if a sector was 

originally allocated 100 mt of GOM cod 

at the beginning of FY 2010, that sector 

would be allowed to carry over up to 10 

mt of GOM cod into FY 2011, even if it 

had acquired an additional 50 mt from 

another sector through an ACE transfer. 

Thus, the amount of ACE that could be 

carried over into FY 2011 would be 

based upon the 100 mt originally 

allocated to that sector for FY 2010, not 

the 150 mt that the sector had ultimately 

acquired by the end of FY 2010. Finally, 

NMFS clarifies that it interprets the 

term ‘‘unused ACE’’ in the context of the 

regulations at § 648.87(b)(1)(i)(C) to 

mean any ACE that has not been fished 

by the sector originally allocated that 

ACE, or leased to another sector during 

that FY. 

In addition to the revisions to the 

calculation of PSCs noted above for 

cancelled permits, this final rule revises 

the regulatory text describing the 

calculation of PSCs at 

§ 648.87(b)(1)(i)(E)(1) and (b)(1)(i)(E)(2) 

to clarify and more accurately reflect the 

processes that were, and continue to be, 

applied to implement such calculations. 

Specifically, this rule clarifies that the 

landings histories of any limited access 

NE multispecies permit, including those 

that were put into CPH, and those of an 

open access NE multispecies handgear 

permit that eventually qualified for, and 

resulted in, the issuance of a limited 

access NE multispecies Handgear A 

permit during FYs 1996 through 2006 

shall be used to calculate the PSCs for 

each valid permit as of June 1 each year. 

In addition, these revisions include an 

example of the landings of regulated 

species and ocean pout that may not be 

used to calculate PSC; namely, any 

landings of yellowtail flounder by 

scallop vessels operating under a 

scallop DAS. Finally, this rule clarifies 

that the PSC that results from such a 

calculation is considered the PSC for 

each stock. 

The regulations at 

§§ 648.87(b)(1)(iii)(C) and (viii) allow 

sectors to transfer ACE for up to 2 weeks 

into the subsequent FY, and provide 

NMFS with 61 days to process ACE 

transfers and determine whether a 

sector has exceeded its ACE for the 

previous FY. Such measures are 

dependent upon the completion of 

NMFS’ evaluation of year-end sector 

catch, including sector ACE overages, 

and may not fully account for the timing 

of NMFS’ year-end evaluation process. 

Therefore, to allow for additional time 

to complete these tasks, if necessary, the 

phrase ‘‘unless otherwise instructed by 

NMFS’’ is being added to reference to 

the 2-week and 61-day deadlines in the 

regulatory text. 

Comments and Responses on Measures 

Proposed in the FW 45 Proposed Rule 

Twenty-four comments were received 

during the comment period on the 

proposed rule for this action from 13 

individuals, 4 fishing industry groups 

(the Northeast Hook Fisherman’s 

Association (NEHFA), the Associated 

Fisheries of Maine (AFM), the Northeast 

Seafood Coalition (NSC), and the 

Northeast Sector Support Network 

(NSSN)), 4 conservation groups (Center 

for Biological Diversity (CBD), Oceana, 

Food and Water Watch (FWW), and 

PEW Environmental Trusts (PEW)), 1 

dockside/roving monitor service 

provider (AIS, Inc.), 1 community group 

(Penobscot East Resource Center 

(PERC)), and the Council. Only 

comments that were applicable to the 

proposed measures, including the 

analyses used to support these 

measures, are addressed in this 

preamble. Comments on the overarching 

sector measures implemented in 2010 

by Amendment 16, or the anticipated or 

realized impacts of those measures, are 

not addressed in this preamble. Please 

note in considering the responses to 

comments below that NMFS may only 

approve or disapprove measures 

proposed in a fishery management plan, 

amendment, or framework adjustment 

and may not change or substitute any 

measure in a substantive way, pursuant 

to section 304(a)(3) of the MagnusonStevens Act. 

General Comments 

Comment 1: The CBD commented that 

the EAs prepared in support of both FW 

45 and the 2011 sector operations plans 

do not adequately evaluate the impacts 

on a number of species proposed for 

listing under the Endangered Species 

Act (ESA), particularly Atlantic 

sturgeon and loggerhead sea turtles. The 

CBD noted that the GOM distinct 

population segment (DPS) and the New 

York Bight and Chesapeake Bay DPSs of 

Atlantic sturgeon were proposed to be 

listed as threatened and endangered 


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under the ESA, respectively, by NMFS’ 

Northeast Regional Office on October 6, 

2010 (75 FR 61872), while the 

Northwest Atlantic loggerhead sea turtle 

DPS was proposed to be listed as 

endangered under the ESA on March 16, 

2010 (75 FR 12598). They contend that 

the FW 45 and FY 2011 sector 

operations plans EAs rely upon 

previous assessments of impacts to 

protected species specified in the 

Amendment 16 EIS that was completed 

on October 16, 2009. Therefore, they 

claimed that the analysis for these 

actions is not appropriate, given the 

proposed listings of Atlantic sturgeon 

and loggerhead sea turtles occurred after 

previous analysis was completed. 

Further, they indicated that the FW 45 

EA does not consider impacts of 

eliminating the yellowtail flounder 

closure areas in the Great South 

Channel Exemption Area, noting that 

sea turtles are present in this area at the 

time that the yellowtail flounder 

spawning protection areas were in 

effect. 

Response: NMFS agrees that the 

analysis originally included in the FW 

45 EA did not describe the impacts to 

DPS of Atlantic sturgeon and loggerhead 

sea turtles. To meet the ESA 

requirements of § 402.12(a), NMFS has 

updated the analysis supporting this 

action in an addendum to the FW 45 EA 

to include analysis of FW 45 measures 

on the DPS for these species in light of 

their proposed listings. This impacts 

analysis concluded that the measures 

implemented under this final rule are 

not likely to jeopardize the continued 

existence of Atlantic sturgeon between 

now and the time a final listing 

determination will be made, and 

concludes that there will be no 

significant impact on Atlantic sturgeon 

or loggerhead sea turtles for the duration 

of this regulation. It also concluded that 

a conference, per the ESA regulations, 

for the proposed loggerhead sea turtle 

DPS is not required based on the 

determinations and the incidental take 

statement in the 2010 Biological 

Opinion for the Multispecies FMP. For 

Atlantic sturgeon, NMFS Sustainable 

Fisheries Division engaged in an 

informal conference with NMFS 

Protected Resources per the ESA 

regulations, and no additional measures 

were recommended by NMFS Protected 

Resources. While it is possible that there 

may be interactions between Atlantic 

sturgeon or loggerhead sea turtles on the 

one hand and, on the other, gear used 

in the NE multispecies fishery, based on 

prior analyses and current observer 

bycatch data for the groundfish fishery, 

the number of interactions that will 

occur between now and the time a final 

listing determination will be made is 

not likely to cause an appreciable 

reduction in survival and recovery. A 

final listing determination for the 

Atlantic sturgeon DPS is expected by 

October 6, 2011. With the publication of 

a final listing rule, the existing Section 

7 consultation for the NE multispecies 

fishery would need to be reinitiated, 

consistent with the requirement to 

reinitiate formal consultation where 

discretionary Federal agency 

involvement or control of the action has 

been retained and a new species is 

listed that may be affected by the action. 

During the reinitiation, the effects of the 

NE multispecies fishery on the five DPS 

for Atlantic sturgeon would be fully 

examined. 

Comment 2: Oceana stated that there 

are no effective AMs for several stocks 

managed by the FMP, and that FW 45 

must include AMs for all stocks 

managed under the FMP, including 

stocks not allocated to sectors under 

Amendment 16 (SNE/MA winter 

flounder, ocean pout, windowpane 

flounder, Atlantic halibut, and Atlantic 

wolffish). Oceana cited the January 21, 

2010, letter from NMFS to the Council 

informing the Council that AMs for 

these stocks should be implemented as 

quickly as possible through a future 

Council action, and stated that the FW 

45 final rule is the first opportunity to 

implement such measures. 

Response: Because of the timing 

needed to more fully account for the 

bycatch of haddock in the Atlantic 

herring fishery before herring fishing 

operations began to increase rapidly 

during the early fall, the Council elected 

to develop FW 46 to revise the existing 

allocations of portions of the GOM and 

GB haddock ACL to the herring fishery 

before they worked on any other actions 

in 2011. Further, because the Council 

intended to develop an action later on 

in 2011 that would implement NE 

multispecies ACLs for FYs 2012–2014, 

the Council decided to address 

outstanding issues associated with AMs 

for ocean pout, windowpane flounder 

and Atlantic halibut through the next 

action, or FW 47. 

Consistent with the MagnusonStevens Act, Amendment 16 

implemented AMs that would be 

sufficient to prevent overfishing of any 

stock managed by the FMP in FYs 2010 

and 2011. However, because 

Amendment 16 did not provide a 

specific allocation of Atlantic halibut, 

SNE/MA winter flounder, ocean pout, 

windowpane flounder, or Atlantic 

wolffish to sectors, these stocks are not 

subject to any sector-specific AMs, 

which is acknowledged by NMFS in the 

letter cited in the comment. The ACL 

available to the commercial NE 

multispecies fishery for each of these 

stocks is allocated entirely to common 

pool vessels, and the only specific AM 

established for these stocks during FYs 

2011 and 2012 is the differential DAS 

counting AM specified for common pool 

vessels at § 648.82(n). NMFS has 

determined there is no immediate need 

for FW 45 to implement AMs for these 

stocks, as overfishing is prevented 

during FYs 2010 and 2011, and any 

overages of the FY 2010 or 2011 ACLs 

would be addressed, at least partially, 

through differential DAS counting 

applicable to common pool vessels in 

FY 2011 or 2012, respectively (see 

§ 648.90(a)(5)(ii)). In making this 

determination, NMFS points out that, 

pursuant to section 304(a)(3) of the 

Magnuson-Stevens Act, it may only 

approve or disapprove measures 

proposed in a fishery management plan, 

amendment, or framework action, and 

may not change or substitute any 

measure in a substantive way. 

Therefore, since FW 45 does not include 

any measure to disapprove regarding 

AMs for these stocks, NMFS finds that 

it should approve the measures that are 

consistent with the Magnuson-Stevens 

Act and other applicable law for all of 

the other stocks with the understanding 

that the Council has committed to 

address the lack of specific AMs for 

these stocks in FW 47. This leads to the 

functional equivalence of disapproving 

and remanding the entire framework to 

address the lack of a required measure, 

but without sacrificing the 

implementation of those measures that 

are needed to ensure conservation for all 

of the other stocks. 

Comment 3: Oceana suggested that 

FW 45 must include AMs for yellowtail 

flounder caught by the Atlantic sea 

scallop fishery, based on the premise 

that the FMP must include measures 

that account for all catches of regulated 

species and ocean pout stocks by other 

fisheries. Oceana acknowledged that the 

Council developed AMs to account for 

yellowtail flounder catch in the scallop 

fishery as part of Amendment 15 to the 

Atlantic Sea Scallop FMP. However, 

they are concerned that such AMs will 

not become effective until at least 6 

months into FY 2011 for the scallop 

fishery (the scallop FY begins on March 

1 of each year) and may not be adequate 

to ensure that any overages of the FY 

2010 yellowtail flounder sub-ACLs 

allocated to the scallop fishery are 

addressed during FY 2011. Further, they 

claimed that it is unclear how the 

proposed Amendment 15 yellowtail 

flounder AMs for the scallop fishery 


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would be implemented in FY 2011, 

particularly if preliminary data indicate 

that the yellowtail flounder sub-ACLs 

for the scallop fishery may be exceeded. 

They suggested that NMFS should better 

explain how such AMs would be 

implemented during FY 2011. In 

addition, Oceana recommended that 

NMFS implement an inseason closure 

provision as an interim measure to 

prevent excessive harvest of yellowtail 

flounder until the Amendment 15 AMs 

become effective, pursuant to the 

National Standard 1 Guidelines at 

§ 600.310(g)(2). 

Response: The AMs applicable to the 

NE multispecies fishery are consistent 

with the National Standard 1 Guidelines 

and sufficient to prevent overfishing on 

each stock by all components of the 

fishery that catch regulated species and 

ocean pout, including yellowtail 

flounder catch by scallop vessels prior 

to the implementation of measures 

proposed in Amendment 15 to the 

Atlantic Sea Scallop FMP. If these 

components of the fishery exceed their 

allocations, and the overall ACL for a 

particular stock is exceeded, the AMs 

applicable to the NE multispecies 

fishery, including those specified for 

sectors and the common pool, will be 

triggered to ensure that overfishing does 

not occur on the stock as a whole (see 

§ 648.90(a)(5)(ii)). 

The proposed rule for Amendment 15 

to the Atlantic Sea Scallop FMP 

published on April X, 2011 (76 FR 

XXXXX). This rule, and its associated 

EIS, contains a complete description of 

the yellowtail flounder AMs for the 

scallop fishery, including the closure of 

specific statistical areas that have the 

highest bycatch of yellowtail flounder 

by the scallop fishery if either the GB or 

SNE/MA yellowtail flounder sub-ACL 

allocated to the scallop fishery is 

exceeded in the previous FY. This rule 

also clarifies the Council proposal that 

any overage of either the GB or SNE/MA 

yellowtail flounder sub-ACLs allocated 

to the scallop fishery for FY 2010 shall 

have a resulting AM applied as soon as 

Amendment 15 is implemented during 

FY 2011, but only if the FY 2010 overall 

ACL for SNE/MA yellowtail flounder is 

exceeded. 

As explained in the response to 

Comment 2 above, pursuant to section 

304(a)(3) of the Magnuson-Stevens Act, 

NMFS may only approve or disapprove 

measures proposed in a fishery 

management plan or amendment, and 

may not change or substitute any 

measure in a substantive way. 

Therefore, NMFS does not have the 

legal authority to implement AMs to 

account for potentially excessive 

yellowtail flounder bycatch in the 

scallop fishery through this final rule. 

Such AMs were not adopted by the 

Council in FW 45, and the AMs in place 

for yellowtail flounder stocks for FY 

2011 are sufficient to address any 

excessive catch by the scallop fishery 

until the AMs proposed in Amendment 

15, if approved, become effective. 

Finally, both the common pool and 

sector AMs currently in place are 

adequate to ensure that overfishing does 

not occur on yellowtail flounder, even 

if the implementation of Amendment 15 

is delayed until later in FY 2011. As of 

March 22, 2011, available data indicated 

that the scallop fishery caught 76,508 lb 

of GB yellowtail flounder and 401,313 

lb of SNE/MA yellowtail flounder 

during FY 2010 in the scallop fishery 

(March 1, 2010, through February 28, 

2011). This represents 24 percent of the 

GB yellowtail flounder and 135 percent 

of the SNE/MA yellowtail flounder 

allocated to the scallop fishery in the 

FW 44 final rule. It is projected that the 

common pool will only harvest 7.7 mt 

(16,976 lb) of its 75-mt (165,347-lb) subACL for SNE/MA yellowtail flounder, 

leaving 148,371 lb of SNE/MA 

yellowtail flounder unharvested during 

FY 2010. In addition, all sectors have 

cumulatively caught only 42.6 percent 

(100 mt, or 220, 462 lb) of the overall 

sub-ACL of this stock allocated to 

sectors (234.7 mt, or 517,425 lb) through 

March 12, 2011. Therefore, even after 

incorporating the 103,689 lb (47 mt) of 

SNE/MA yellowtail flounder caught by 

the scallop fishery in excess of the 

allocation to that fishery during FY 

2010, it is highly unlikely that the 

overall FY 2010 ACL for SNE/MA 

yellowtail flounder will be exceeded, 

and that the implementation of any AMs 

to prevent overfishing of this stock will 

be necessary. While it is still too early 

to accurately predict future bycatch 

rates, based upon available data, it is 

unlikely that the scallop fishery bycatch 

of yellowtail flounder during FY 2011 

will exceed allocated sub-ACLs before 

Amendment 15 AMs, if approved, 

become effective. Thus, the current lack 

of scallop-specific AMs is not a serious 

conservation or management problem in 

the fishery. 

Finally, Oceana’s recommendation to 

establish an interim in-season closure 

AM is not required by applicable law. 

Neither the Magnuson-Stevens Act nor 

the National Standard 1 Guidelines 

mandate the use of fishery closures or 

the use of in-season controls as AMs. 

Reactionary AMs similar to the 

differential DAS counting AM may be 

used and can be are just as valid as 

inseason AMs. Although an FMP can 

include in-season closures, under the 

cited national standard guideline, 

neither NMFS nor the Council is 

obligated to institute such closures. Inseason closures are merely one tool that 

may be used by the Council and NMFS 

to prevent overfishing and ensure that 

ACLs are not exceeded. In any event, 

short of a temporary emergency action 

or Secretarial amendment, NMFS is not 

in a position to implement this kind of 

AM in deciding whether to approve or 

disapprove FW 45. Accordingly, NMFS 

has not implemented yellowtail 

flounder AMs for the scallop fishery 

through this final rule. 

Status Determination Criteria for 

Pollock 

Comment 4: Both PEW and an 

industry group (NSC) supported 

revisions to the status determination 

criteria for pollock and its associated 

revisions to stock status and ABCs and 

ACLs. Both groups applauded the rapid 

incorporation of updated scientific 

information into the FMP, with the 

industry group stating that such 

measures ensure that significant 

economic benefits of higher catch limits 

for this species will continue in future 

FYs. 

Response: NMFS agrees that it is 

appropriate to incorporate updated 

scientific information into management 

measures as quickly as possible. 

Therefore, the proposed revisions to the 

status determination criteria for pollock 

and associated ABCs and ACLs are 

implemented through this action. 

Rebuilding Program for GB Yellowtail 

Flounder 

Comment 5: PEW opposed the 

proposed reduction of the GB yellowtail 

flounder rebuilding program from the 

existing 75-percent probability of 

success to a 50-percent probability of 

success. PEW stated that a 50-percent 

probability of success is not adequate 

because the chance of failure is too high. 

They further stated that maximizing 

catch should not be the highest priority 

when managing the rebuilding of an 

overfished stock. They suggested that 

the existing rebuilding program with a 

minimum 75-percent probability of 

success should be maintained, noting 

that typical statistical analyses rely 

upon a 95-percent probability of 

success. 

Response: The decision to extend the 

GB yellowtail flounder rebuilding 

program is based on a number of factors 

beyond simply increasing catch over the 

short term. Updated stock assessment 

conducted by the TRAC indicated that 

the strength of the 2005 year class was 

much lower than originally estimated. 

Therefore, the stock is no longer 


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expected to rebuild by 2014 with a 75- 

percent probability of success. Although 

extending the rebuilding timeframe to 

10 years reduces the probability of 

success to 50 percent, the extension is 

still within the probability limits 

recognized by courts which have 

reviewed challenged FMPs. Although a 

rebuilding program with a higher 

probability of success would be more 

likely to rebuild overfished stocks 

within established rebuilding 

timeframes than one with a lower 

probability, based on analysis 

supporting FW 45, the revised 

rebuilding program is still capable of 

rebuilding the stock within the 

established rebuilding period. Faced 

with this information, the Council 

elected, consistent with National 

Standard 8, to revise the rebuilding 

program for this stock in way to 

minimize the adverse economic impacts 

on fishing communities to the extent 

practicable, without compromising the 

conservation requirements of the FMP 

or the Magnuson-Stevens Act. NMFS 

agrees with the Council that allowing 

for increased catch over the short-term, 

while still ending overfishing and 

enabling the stock to rebuild more 

effectively, balances the multiple and 

somewhat competing objectives of the 

national standards of the MagnusonStevens Act. Further, extending the 

rebuilding timeframe increases the 

capacity of the Council to negotiate 

yearly TACs with Canadian 

representatives through the TMGC 

process, as Canadian law does not have 

a requirement for a defined rebuilding 

period. Maintaining successful 

collaborative management with Canada 

is crucial to ensuring the effective 

management of this transboundary stock 

by preventing overfishing and 

continuing to rebuild this overfished 

stock. Therefore, NMFS approves and 

implements the proposed revisions to 

the GB yellowtail flounder rebuilding 

program. 

ACLs 

Comment 6: Oceana recommended 

that NMFS disapprove the proposed 

allocation of yellowtail flounder to the 

scallop fishery because it relies upon an 

outdated analysis of the expected catch 

of yellowtail flounder by the scallop 

fishery and is inconsistent with the use 

of the best available scientific 

information mandated by National 

Standard 2. Instead, they recommend 

that NMFS implement allocations that 

are based on updated estimates of actual 

anticipated yellowtail flounder catch by 

the scallop fishery during FY 2011. 

Response: NMFS recognizes that there 

are updated estimates of anticipated 

catch of yellowtail flounder by the 

scallop fishery. However, as noted in 

the FW 45 EA, there is uncertainty 

associated with these estimates. For 

example, Table 113 of the FW 45 EA 

illustrates that scallop catches of 

yellowtail flounder have not shown 

clear trends, despite the increased 

abundance of yellowtail flounder in 

recent years. If the updated estimates of 

yellowtail flounder bycatch 

underestimate actual catch by the 

scallop fishery, as implied in Oceana’s 

comment, then the yellowtail flounder 

sub-ACLs allocated to the scallop 

fishery are likely to be exceeded, which 

could result in overfishing this stock. 

Overages of the yellowtail flounder subACL, if leading to the overage of the 

overall ACL for a stock, would trigger 

AMs for the directed groundfish fishery 

to account for such an overage and 

ensure that overfishing does not occur 

in the future. Any AMs that may be 

triggered by exceeding this sub-ACL 

could redistribute either common pool 

or sector fishing effort, resulting in 

adverse biological impacts on a wider 

range of species compared to the 

existing allocations. In addition, 

lowering the yellowtail flounder 

allocations to the scallop fishery based 

upon this updated information puts 

much more total revenue and optimum 

yield at risk than maintaining the 

existing allocations, particularly if AMs 

are triggered and the available scallop or 

yellowtail flounder catch is not fully 

harvested. Although updated estimates 

of the expected yellowtail flounder 

bycatch in the scallop fishery are less 

than the existing allocations, 

maintaining the existing allocations to 

the scallop fishery, on balance, will 

likely reduce the chance of a derby 

fishery in the scallop fishery, better 

achieve the biological targets for both 

scallops and yellowtail flounder, and 

place less revenue and optimum yield at 

risk for both fisheries. Thus, there are 

potentially substantial adverse 

economic and biological impacts 

associated with revising these 

allocations using the updated bycatch 

estimates. 

As noted above, NMFS may only 

approve or disapprove measures 

proposed in a fishery management plan 

or amendment, and may not change or 

substitute any measure in a substantive 

way. The yellowtail flounder allocation 

to the scallop fishery is a continuation 

of the allocation implemented by FW 

44. NMFS cannot substitute another 

alternative for this provision as part of 

this final rule. Even if NMFS could 

disapprove the FW 45 yellowtail 

flounder allocation to the scallop 

fishery, the yellowtail flounder 

allocation to the scallop fishery for FY 

2011 would revert to that implemented 

by FW 44 which is the same as 

proposed in FW 45. Therefore, NMFS 

has not revised the FY 2011 yellowtail 

flounder allocations to the scallop 

fishery in this final rule. 

Annual Specifications for the U.S./ 

Canada Management Area 

Comment 7: One industry group 

(NSC) strongly supported the proposed 

action to disapprove the FY 2011 GB 

yellowtail flounder U.S./Canada 

Management Area TAC and associated 

ABC and ACLs, and to implement a 

revised FY 2011 TAC, ABC, and ACL for 

this stock based upon revised 

recommendations of the TMGC 

following the recent adoption of IFACA. 

They noted that the adoption of IFACA 

represents new information and 

unforeseen circumstances that justify 

the use of emergency Secretarial 

authority to revise this TAC. They also 

group suggested that the updated TAC 

prevents overfishing and rebuilds stock 

consistent with broader goals of section 

304(e) of the Magnuson-Stevens Act, 

provides very important economic 

benefits to both the groundfish and 

scallop fisheries, and results in an 

increased chance of achieving OY in 

these fisheries. 

Response: NMFS agrees with the 

substance of this comment, although, as 

noted above in the background section 

of this preamble, instead of 

disapproving the FW 45 TAC for this 

stock, NMFS has approved it, because 

the originally proposed TAC is still 

consistent with the FMP and applicable 

law. However, NMFS is replacing the 

FW 45 TAC for this stock with the 

revised FY 2011 TAC, pursuant to 

emergency Secretarial authority, for the 

reasons stated in the preamble of the 

proposed rule for this action. 

GOM Cod Spawning Protection Area 

Comment 8: Four individual private 

recreational anglers opposed the 

proposed GOM Cod Spawning 

Protection Area, while one 

environmental group (PEW) and one 

community group (PERC) strongly 

supported the implementation of this 

area. While one recreational angler was 

opposed to closure areas in general, the 

other three anglers indicated that such 

a closure unnecessarily and unfairly 

prevents small private recreational 

vessels from accessing cod closer to 

shore. Two of these respondents 

suggested that the GOM cod stock is 

improving and does not warrant further 

action to protect spawning aggregations. 

They indicated that, if further protection 


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for this stock is necessary, they would 

prefer alternative measures, including 

possession or size limits. One 

respondent also claimed that fishing 

with hook gear does not disturb 

spawning aggregations. In contrast, both 

PEW and PERC supported this provision 

because it was based on a careful 

analysis of available scientific 

information. They recommended that 

the Council and NMFS should continue 

to identify and protect additional key 

habitat areas for spawning fish. Further, 

PERC advised that mid-water trawl gear 

should not be allowed in this area 

because they claim that this gear catches 

large amounts of groundfish stocks and 

would undermine efforts to rebuild 

overfished stocks. 

Response: NMFS agrees that the GOM 

cod stock is recovering. The latest stock 

assessment, the Groundfish Assessment 

Review Meeting (GARM) III, indicates 

that the stock is nearly rebuilt (i.e., that 

SSB is nearly at the level to sustain 

MSY), but notes that the success of 

continued rebuilding relies upon the 

strength of recent year classes, 

particularly the 2003 and 2005 year 

classes. Therefore, without continuing 

high levels of recruitment, the stock 

may not be able to achieve and maintain 

a high level of biomass. 

Council efforts to specifically protect 

spawning aggregations of GOM cod date 

back to the implementation of FW 26 in 

1999 (January 15, 1999; 64 FR 2601). 

That action revised the existing GOM 

Rolling Closure Areas established under 

FW 25 (March 31, 1998; 63 FR 15326), 

and reclassified their designation as 

‘‘inshore ‘cod spawning’ closures.’’ The 

intended purpose of such measures 

under FW 26 was to protect cod during 

the spawning season, because cod 

stocks are ‘‘particularly vulnerable to 

fishing pressure’’ during spawning 

periods. Thus, since 1998, commercial 

fishing vessels have been excluded from 

areas in which cod are likely to be 

spawning. However, private recreational 

and charter/party vessels, including 

those fishing with gear capable of 

catching groundfish, have been able to 

access these areas even during the 

spawning season for GOM cod. 

As noted in the FW 45 EA and the 

preamble to the proposed rule for this 

action, the GOM Cod Spawning 

Protection Area is intended to provide 

protection to spawning cod by limiting 

all fishing activities using gear that may 

catch groundfish in a discrete area and 

during a time in which cod spawning 

activity is documented to be occurring. 

The area and season proposed in FW 45 

was based on research conducted by the 

University of New Hampshire in 

collaboration with the Northeast 

Consortium. This research represents 

the first study in which western Atlantic 

cod were examined on such a fine scale 

to determine both temporal and spatial 

distribution of this species. According 

to this research, cod spawning within 

the GOM Cod Spawning Protection Area 

exhibit site fidelity, congregate in this 

specific area for the duration of the 

spawning season, and return to this area 

each year to spawn. These fish represent 

a ‘‘discrete management unit’’ that is 

confirmed by genetic study, and 

constitute the largest distinctly 

identified spawning group left in the 

western Atlantic Ocean. Further, this 

research documents that trawl-caught 

fish are affected by fishing activity, 

requiring several days to resume normal 

behavioral patterns following capture. 

Finally, this study reiterated a concern 

expressed by members of the fishing 

industry and state resource management 

agencies that the recreational fishing 

fleet, particularly charter/party vessels, 

that continue to be able to access 

spawning aggregations of cod may 

decrease the rate at which the GOM cod 

stock rebuilds. Thus, continued fishing 

pressure or disruption to spawning 

activity could adversely affect cod 

recruitment within the GOM. 

As proposed, the GOM Cod Spawning 

Protection Area prohibits both 

commercial and recreational vessels 

fishing with gear considered to be 

capable of catching groundfish from 

fishing in this area from April through 

June of each year. Under this measure, 

all vessels are treated equally, and 

neither group has access to this area 

during this time. This is in contrast to 

the existing GOM Rolling Closure Areas 

in that commercial vessels are 

prohibited from fishing for groundfish 

in these areas, but recreational vessels 

can target groundfish in these areas 

throughout the spawning season. 

Although the GOM Cod Spawning 

Protection Area would essentially close 

some near-shore fishing grounds to 

recreational vessels during the 

spawning season, this measure would 

not eliminate small vessel access to 

available cod resources. This area is 

relatively small (roughly 82 square 

miles, or 212 square km) and represents 

the only area closure applicable to 

recreational vessels at all, let alone 

during the spawning season. Therefore, 

recreational vessels have access to 

available cod resources in other 

locations and throughout the rest of the 

FY. Finally, while measures such as 

possession or size limits are capable of 

affecting fishing mortality, such 

measures cannot protect or improve 

recruitment in the same way that area 

closures can. FW 45 does not propose to 

further reduce fishing mortality on this 

stock. Instead, this provision is intended 

specifically to reduce fishing activity on 

spawning aggregations and, in turn, 

preserve opportunities for successful 

recruitment of this stock in the future. 

Because the preservation of sufficient 

levels of recruitment is critical for the 

continued success of efforts to rebuild 

GOM cod, possession or size limits 

would not effectively achieve the 

objectives for the GOM Cod Spawning 

Protection Area in FW 45. Existing 

regulations, including the GOM 

Seasonal Rolling Closure Areas at 

§ 648.81(f) and the Sector Rolling 

Closure Areas at § 648.81(f)(2)(vi), 

already prohibit vessels fishing on 

either a sector or a common pool trip 

from targeting regulated species and 

ocean pout in this area during April and 

May. For these reasons, NMFS has 

approved the GOM Cod Spawning 

Protection Area, including the proposed 

prohibition of midwater trawl gear 

fishing in this area during June of each 

year. 

Handgear A and B Measures 

Comment 9: Two commercial 

fishermen strongly supported any 

measures that would benefit small 

vessels fishing near shore with 

handgear. One of these individuals 

indicated that fishing with handgear has 

no detrimental effects to stock recovery 

or bycatch because all fish can be 

released alive. Because they consider 

handgear to be a more sustainable gear 

type, PERC further stated that NMFS 

should expand opportunities for the use 

of handgear instead of restricting their 

trip limits. 

Response: NMFS believes the 

measures implemented by this final 

rule, including revisions to handgear 

trip limits, exemption of handgear 

vessels from common pool dockside 

monitoring requirements, and access to 

seasonal closure areas encourage 

participation in the NE multispecies 

fishery by handgear vessels, and 

minimize economic impacts to such 

vessels, without compromising efforts to 

end overfishing and rebuild overfished 

stocks. 

Comment 10: The NEHFA and PERC 

suggested that handgear vessels should 

be given a specific sub-ACL to avoid 

being adversely impacted by potentially 

excessive catch by common pool 

vessels. 

Response: The Council considered 

specifying a specific sub-ACL for 

handgear vessels during the 

development of FW 45, but did not 

ultimately adopt such a measure due to 

a concern that allocation decisions 


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cannot be implemented through a FW 

action. The Council ultimately 

concluded that such allocations must 

rather be implemented through an 

amendment to the FMP because they are 

considered substantial revisions to 

existing management measures and 

require additional public input. NMFS 

agrees with this interpretation. 

Comment 11: The NEHFA and one 

commercial fisherman supported the 

proposed revisions to the cod trip limits 

applicable to handgear vessels. They 

indicated that such revisions will 

provide relief from the impacts of the 

‘‘race to fish’’ during the early part of the 

FY in the common pool. 

Response: NMFS agrees, and has 

implemented these revisions through 

this final rule. 

Comment 12: One commercial 

fisherman, PERC, and the NEHFA 

expressed support for the proposed 

requirement for handgear vessels to be 

issued a LOA to fish south of the GOM 

RMA for GB cod. NEHFA recommended 

that vessel owners could request a LOA 

annually when renewing their NE 

multispecies permits, declare through 

the permit renewal application that the 

vessel would be fishing south of the 

GOM RMA for the duration of the FY 

and not have to request a LOA, or be 

issued a LOA automatically through a 

Web site similar to the existing NMFS 

VTR Web site. This group contends that 

these recommendations would help 

minimize the burden on fishermen and 

NMFS. In addition, NEHFA was 

concerned that the issuance of the LOA 

would adversely impact the ability of 

vessel owners to participate in other 

fisheries. 

Response: NMFS implements the 

requirement for handgear vessels fishing 

south of the GOM RMA to either obtain 

a paper LOA or declare their intent to 

fish south of the GOM via VMS through 

this final rule. Under the LOA 

provisions implemented through this 

final rule and existing protocols, a 

vessel owner could specify that he/she 

intends to fish south of the GOM RMA 

for the entire year and be issued a LOA 

to reflect that decision during the 

annual renewal of his/her NE 

multispecies permit. Automated or webbased declaration and issuance of this 

LOA would require further 

consideration by NMFS, including 

ensuring that such declarations do not 

compromise the enforceability of the 

LOA, would not unintentionally restrict 

the ability of vessel operators to fish in 

the area of their choosing, and can be 

technically administered. NMFS has the 

authority to revise the mechanism by 

which such LOAs are issued to fishery 

participants and could implement the 

recommendations offered by the public 

in the future if feasible. Any changes to 

how LOAs are issued will be 

communicated to all affected 

stakeholders through a permit holder 

letter, as appropriate. 

Comment 13: The NEHFA supported 

the proposed exemption of vessels 

issued a limited access NE multispecies 

Handgear A permit from the GB 

Seasonal Closure Area and allowing 

such vessels to fish in the Sector Rolling 

Closure Areas in the GOM. The NEHFA 

noted that Handgear A vessels are 

currently precluded from fishing in the 

GOM until June or July based on the 

existing GOM Rolling Closure Areas. 

This group stated that, without 

exemptions, Handgear A vessels will 

not remain economically viable due to 

competition with other gear types for 

available common pool sub-ACLs. They 

contested that the proposed exemptions 

would provide needed economic relief 

through increased access to traditional 

fishing grounds that are within reach of 

the small Handgear A vessels. Another 

commercial fisherman also supported 

these measures, stating that they would 

help small vessels compete against 

larger and more efficient vessels in the 

common pool. Both PEW and PERC 

supported promoting the use of 

handgear through these proposed 

measures, stating that handgear is the 

gear type with the least impacts to 

habitat and the fishery. 

Response: NMFS agrees with the 

comments, and this final rule 

implements the proposed exemption. 

Dockside/Roving Monitoring 

Requirements 

Comment 14: The NSC questioned the 

utility of dockside/roving monitoring 

requirements, suggesting that FW 45 

should eliminate such requirements 

completely. The NSC believes the 

current requirements to be highly 

inefficient, representing an 

unsustainable and unjustified cost to the 

fishing industry. Further, they suggested 

that NMFS should allow sectors to use 

dockside monitoring data as a proxy for 

dealer data in the weekly sector catch 

reports submitted to NMFS to increase 

the utility of the dockside/roving 

monitoring program. Finally, NSC 

indicated that roving monitors should 

not have to observe offloads to a truck 

and also to a dealer, asserting that 

roving monitors should only be required 

to observe offloads from the vessel to a 

truck, to increase the efficiency and 

reduce costs associated with these 

provisions. 

Response: The Council considered 

completely eliminating dockside/roving 

monitoring requirements during the 

development of FW 45. However, due to 

lingering concerns over the ability to 

enforce existing provisions to monitor 

sector ACE and minimize incentives to 

misreport catch, the Council retained 

dockside/roving monitoring 

requirements in FW 45. NMFS may only 

approve or disapprove measures 

proposed in FW 45, and may not change 

or substitute any measure in a 

substantive way. Therefore, NMFS 

cannot eliminate dockside/roving 

monitoring requirements through this 

final rule. 

During the development of 

Amendment 16, it was anticipated that 

sectors would rely upon dockside/ 

roving monitor data to document sector 

landings immediately following a 

vessel’s offload until the official dealer 

reports become available approximately 

a week later. This practice has been 

discussed with sector managers through 

several sector workshops held during 

2009 and 2010. NMFS recognizes that 

dockside/roving monitoring data cannot 

currently be reported as part of the 

weekly sector catch reports submitted to 

NMFS based upon existing guidance 

and database structures. To date, many 

dockside/roving monitoring data are not 

systematically collected in a format that 

can be easily transferred to a catch 

monitoring database. Instead, they are 

often merely scanned images of a 

dockside/roving monitor report. NMFS 

has the regulatory authority to accept 

dockside/roving monitoring data in the 

future and may reconsider the 

acceptance of dockside/roving 

monitoring data if such data become 

available in an acceptable electronic 

format. Further, dealer landings, as 

documented through official dealer 

reports, have been the standard by 

which landings are monitored for many 

years, and were used as the basis for the 

calculation of potential sector 

contributions and, therefore, sector 

ACE. Accordingly, even if dockside/ 

roving monitor data could be considered 

as a proxy for dealer landings in weekly 

sector catch report, dealer landings data 

would continue to be the official record 

of species landed by each federally 

permitted vessel. 

The Council required sectors to 

develop and implement an independent 

third-party weighmaster system 

satisfactory to NMFS for monitoring 

landings and utilization of ACE. The 

original intent of dockside/roving 

monitoring coverage was to verify 

landings of a vessel at the time it is 

weighed by a dealer to certify the 

landing weights are accurate as reported 

on the official dealer report for 

compliance purposes. Therefore, NMFS 

implemented regulations under 


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Amendment 16 that require that a 

roving monitor must observe the 

offloads from a vessel to a truck and 

again from the truck to a dealer, unless 

the vessel offloads directly to a dealer. 

These regulations were based upon a 

pilot program and existing dockside/ 

roving monitoring programs developed 

in other regions and in Canada. During 

sector implementation workshops 

conducted in 2009 and 2010, and 

ongoing communications with sector 

managers, NMFS indicated that it would 

allow a roving monitor to only observe 

offloads from a vessel to a truck, 

provided a representative from the 

dealer ultimately receiving the fish was 

present at the time of the offload, and 

that all fish were weighed at the time of 

the offload. This ensures that the weight 

of fish offloaded corresponds to the 

weight of the fish recorded in the 

official dealer report, consistent with 

the intent of Amendment 16. Thus, 

existing regulations and protocols 

already allow for the behavior requested 

by the NSC in their comment. 

Comment 15: The NEHFA, PERC, 

PEW, and one commercial fisherman 

supported exempting vessels issued a 

limited access NE multispecies 

Handgear A or a Small Vessel 

Exemption permit or an open access NE 

multispecies Handgear B permit that is 

fishing in the common pool from the 

existing dockside/roving monitoring 

requirements. They stated that 

dockside/roving monitoring costs may 

be more than the value of fish landed on 

a particular trip and would make the 

operation of such permits economically 

unviable. The NEHFA also noted that 

many handgear vessels are launched 

and retrieved at public boat ramps, 

thereby creating logistical difficulties for 

waiting for the dockside/roving monitor 

to arrive because a boat may be forced 

to move off of the dock to accommodate 

the launching of other boats. This group 

also contended that the current system 

of monitoring landings is sufficient for 

these vessels due to the small amount of 

fish landed on each trip. Finally, PERC 

suggested that handgear vessels fishing 

in sectors should also be exempted from 

the dockside/roving monitoring 

requirements. 

Response: NMFS agrees that the costs 

associated with the existing dockside/ 

roving monitoring requirements could 

make fishing with a Handgear A, 

Handgear B, or Small Vessel Exemption 

permit uneconomical for the reasons 

noted above and specified in FW 45. 

Therefore, NMFS implements the 

proposed exemption from the common 

pool dockside/roving monitoring 

requirements for these permit categories 

through this final rule. Because the 

Council did not adopt a provision that 

would have exempted sector vessels 

fishing with a handgear permit from the 

dockside/roving monitoring 

requirements as part of FW 45, NMFS 

cannot implement such a provision 

through this action. 

Comment 16: Three commercial 

fishermen and two commercial fishing 

industry groups (AFM and NSC) 

opposed the proposal to require 

dockside/roving monitors to inspect the 

fish holds of vessels offloading 

groundfish. AIS, Inc., a dockside/roving 

monitoring service provider, also 

expressed concerns that the proposed 

requirement for dockside monitors to 

inspect fish holds presents safety issues. 

All commenters highlighted the risk of 

serious injury from having dockside/ 

roving monitors board vessels, climb 

down ladders into the fish holds, and 

inspect the holds or other compartments 

for fish that have not been offloaded. 

AIS noted that there are no standards in 

FW 45 that address potentially 

dangerous conditions in inspecting 

holds, or requirements for vessels to 

provide a standardized safe boarding 

system. AIS also stated that there is no 

guidance as to how to inspect fish 

holds, including whether dockside 

monitors must inspect piles of ice or 

look for fish in other compartments, 

giving the impression that dockside/ 

roving monitors may be acting as 

enforcement personnel instead of data 

collectors. Several commenters 

suggested that this potential risk will 

force vessel owners to buy more 

insurance to ensure that they are 

adequately covered for any potential 

liability lawsuits that might result from 

this provision. In doing so, they 

contested that this would contradict the 

FW 45 economic analysis that indicates 

that this measure should not impact 

either vessel owners or service 

providers. They noted that, even if the 

dockside/roving monitoring service 

providers had sufficient insurance 

coverage, vessel owners might still be 

sued and face financial liability from the 

injury claims of individual dockside/ 

roving monitors. Further, they claimed 

that the proposed rule does not provide 

any rationale that enhanced 

enforceability is needed, or that 

underreporting is occurring. They 

contested that the existing provisions 

that require dockside/roving monitors to 

ask vessel operators if all fish have been 

offloaded, and classify providing false 

statements to dockside/roving monitors 

as a violation, should be sufficient to 

enforce this provision. They 

recommended that NMFS Office of Law 

Enforcement should inspect fish holds, 

instead of dockside/roving monitors. 

Response: As noted throughout the 

development of Amendment 16 and FW 

45 by both fishing industry 

representatives and NMFS, the 

transition to expanded sector 

management and ACLs increases 

incentives to misreport or under report 

catch and landings. Dockside/roving 

monitoring programs established in 

other regions of the United States and 

Canada that are managed by harvest 

quotas are considering, or have 

required, dockside/roving monitors to 

inspect fish holds to ensure that all fish 

are offloaded. The potential for 

dockside/roving monitors to inspect fish 

holds was explicitly discussed 

throughout the development of 

Amendment 16 as part of both the 

Council process and parallel meetings to 

discuss the development of sector 

measures sponsored by the Gulf of 

Maine Research Institute. Section 

4.2.3.5.4 of the Amendment 16 FEIS 

documents this discussion and clearly 

indicates that to be approved as a 

dockside/roving monitor, a dockside/ 

roving monitor must meet several 

criteria, including: 

‘‘Physical capacity for carrying out the 

responsibilities of a dockside/roving monitor 

pursuant to standards established by NMFS 

such as being certified by a physician to be 

physically fit to work as a dockside/roving 

monitor. The physician must understand the 

monitor’s job and working conditions, 

including the possibility that a monitor may 

be required to climb a ladder to inspect fish 

holds.’’ 

Therefore, the general public, including 

both vessel owners and dockside/roving 

monitoring service providers, were well 

aware of the potential that dockside/ 

roving monitors might be required to 

inspect fish holds and the risks that 

such activity might incur. However, no 

comments opposing this practice were 

raised to NMFS during the public 

comment period on the Amendment 16 

proposed rule. 

The final rule implementing 

Amendment 16 measures did not 

require dockside/roving monitors to 

inspect the fish holds based, in part, on 

a pilot dockside/roving monitoring 

program conducted in the summer of 

2009. Similar to comments received on 

this action, some safety concerns were 

identified with inspecting fish holds 

during the pilot program, even though 

fish holds were actually inspected as 

part of that pilot program. As a result, 

in the Amendment 16 proposed (74 FR 

69382; December 31, 2009) and final 

rules, NMFS intentionally included 

language in the dockside/roving 

monitoring program operational 


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standards at § 648.87(b)(5)(ii)(B)(1) that 

allow individual dockside/roving 

monitors or service providers to inspect 

fish holds if they elect to do so. 

Section 311 of the Magnuson-Stevens 

Act provides the Secretary of Commerce 

with the general authority to enforce the 

provisions of the Magnuson-Stevens 

Act. NMFS acknowledges that existing 

dockside/roving monitoring provisions 

make it a violation for a vessel operator 

to provide false statements to a 

dockside/roving monitor about whether 

all catch is offloaded. However, that is 

just one of many ways to ensure 

compliance with existing regulations. 

NMFS does not agree that such 

measures are completely sufficient to 

ensure that all catch is offloaded. The 

only way to validate statements made by 

a vessel operator is to actually inspect 

fish holds. NMFS Office of Law 

Enforcement personnel already have the 

authority to board and inspect vessels. 

However, requiring dockside/roving 

monitors to also inspect fish holds, as 

anticipated during the development of 

Amendment 16, provides another means 

to ensure that vessel operators are 

complying with existing requirements, 

and that all fish that are landed are 

recorded in dealer databases or other 

data sources such as dockside/roving 

monitor reports. Dockside/roving 

monitors are not enforcement personnel, 

but their observations, including the 

reports summarizing the offloads of 

individual trips, are available to law 

enforcement personnel, as described in 

Section 4.2.3.5.4 of the Amendment 16 

FEIS and the existing regulations at 

§ 648.87(b)(4). The training provided to 

dockside/roving monitors by NMFS 

explicitly states that it is the dockside/ 

roving monitor’s responsibility to 

account for all catch, whether or not it 

is properly weighed or recorded by 

other parties. Monitors must record any 

species that is not weighed in their 

incident report to facilitate compliance 

with existing requirements. Therefore, 

based on the need to ensure that NMFS 

is accurately monitoring the amount of 

fish landed, NMFS has retained the 

requirement that dockside/roving 

monitors must inspect fish holds as part 

of this final rule. 

NMFS recognizes that dockside/ 

roving monitors must proceed with 

caution when conducting inspections of 

fish holds. As part of the dockside/ 

roving monitoring training curriculum 

and certification process overseen by 

NMFS, individual dockside/roving 

monitors are trained and tested for 

competency in safety procedures, 

including slips, trips, and falls; 

electrical safety; climbing stairs and 

ladders; overhead dangers; unstable 

items; and fire. In addition, NMFS will 

likely require all previously certified 

dockside/roving monitors to attend a 

refresher safety training session on 

issues specific to boarding vessels and 

inspecting fish holds. Based on 

examples in other U.S. and Canadian 

fisheries, NMFS is currently developing 

standardized protocols that outline the 

major elements that dockside/roving 

monitors must comply with when 

inspecting fish holds. These elements 

include, but are not limited to, 

requesting permission from the vessel 

captain to board a vessel, following the 

instructions of the vessel’s captain and 

crew to safely enter and exit the fish 

holds, and inspecting only areas of the 

vessel that would normally be used to 

store fish. Such standards will be 

integrated into the dockside/roving 

monitoring training curriculum 

developed and conducted by the 

Northeast Fishery Observer Program. 

The dockside/roving monitor service 

provider approval standards adopted in 

Amendment 16 explicitly included the 

requirement for service providers to 

have adequate insurance to cover injury, 

liability, or accidental death that might 

befall dockside/roving monitors. NMFS 

recognizes that despite such coverage, 

individual dockside/roving monitors 

still have the capacity to bring a lawsuit 

against vessel owners for any injuries 

incurred while inspecting fish holds. 

NMFS encourages sectors and dockside/ 

roving monitor service providers to seek 

agreement on how to best address the 

issues and problems raised by the 

comment. As to whether FW 45 

sufficiently considers possible increases 

in cost for liability insurance for 

inspecting fish holds, NMFS does not 

have sufficient information to do so. 

While NMFS has information on the 

amount and type of insurance dockside/ 

roving monitoring service providers 

have purchased, it would be difficult for 

NMFS to speculate on the costs of 

additional insurance for individual 

vessels. However, NMFS is committed 

to reviewing the requirement to inspect 

fish holds and the costs associated with 

it over time as more information 

becomes available. 

Comment 17: Two industry groups 

(AFM and NSC) supported the proposal 

to delay the industry’s responsibility for 

dockside and at-sea monitoring costs 

until FY 2013. They stated that this 

accurately reflects the fishing industry’s 

inability to pay for the high costs of 

such monitoring at this time. However, 

the NSC cautioned that the economic 

viability of the fishing industry is not 

likely to improve sufficiently to enable 

sectors to cover such monitoring costs 

in FY 2013. Accordingly, they 

recommended that the Council and 

NMFS should consider further 

postponing industry responsibility for 

such costs until the fishing industry is 

profitable again. In contrast, PEW 

suggested that sectors should be in a 

better position to assume monitoring 

costs in FY 2013. PEW offered that the 

proposed delay would help ensure the 

success of the established sector 

program, arguing that the long-term 

benefits of fishing under sectors 

outweigh any potential impacts 

associated with reduced dockside 

monitoring in the short term. 

Oceana opposed delaying industry 

responsibility for dockside and at-sea 

monitoring costs, claiming that NMFS 

does not have the authority to modify 

sector monitoring provisions in a FW 

action because such a measure would be 

a fundamental change in the FMP and 

that implementing this delay through a 

FW action would circumvent the public 

process. Citing a recent court case 

(Oceana, Inc. v. Evans, 384 F. Supp. 2d 

203, 255 (D.DC 2005)), they contended 

that such measures can only be 

modified through an amendment, with 

an associated NEPA document. They 

also suggested that the proposed delay 

would undermine the MagnusonStevens Act requirements to monitor 

bycatch and implement measures to 

ensure accountability for ACLs, 

especially considering the concerns 

expressed by NMFS in a November 15, 

2010, letter to the Council highlighting 

concerns about the potential limitation 

of NMFS funding in 2012 to support 

dockside and at-sea monitoring. FWW 

echoed this concern, noting that this 

might cause a ‘‘gap in the necessary 

enforcement required due to increased 

incentives for high-grading, 

misreporting, and underreporting.’’ They 

recommended that delaying or removing 

monitoring costs should be based on 

vessel size/capacity, or an individual 

business’s revenue. 

Response: NMFS recognizes that the 

costs of requiring the fishing industry to 

pay for sufficient at-sea monitoring 

coverage could reduce profitability. 

However, a FMP must continue to 

maintain measures that prevent 

overfishing and promote the long-term 

health and stability of the fishery, as 

required by section 303(a) of the 

Magnuson-Stevens Act. As noted above, 

NMFS is concerned that relying 

exclusively on available NMFS funding 

for at-sea monitoring coverage during 

FY 2012 may reduce the amount of atsea monitoring coverage available 

during that FY due to the yet uncertain 

amount of available NMFS funding for 

FY 2012. NMFS agrees that delaying 

industry responsibility for paying for atVerDate Mar<15>2010 17:52 Apr 22, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\25APR3.SGM 25APR3

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sea monitoring coverage may reduce the 

amount of at-sea monitoring coverage 

during FY 2012 and undermine efforts 

to obtain accurate information regarding 

catch in the fishery. Therefore, NMFS 

has disapproved the proposed measure 

to delay industry responsibility for the 

costs at-sea monitoring coverage during 

FY 2012. NMFS expects at least some 

funding that will offset at least some of 

the at-sea monitoring coverage costs 

during FY 2012. Accordingly, the 

fishing industry would only be 

responsible for the costs of at-sea 

monitoring coverage that is not 

accounted for by available Federal 

funding. 

As noted in the FW 45 EA, delaying 

industry responsibility for funding 

dockside/roving monitoring coverage in 

FYs 2011 and 2012 will immediately 

reduce operational costs to industry, 

without reducing the availability of 

landings information. This is because 

the dockside/roving monitoring data are 

primarily used for enforcement 

purposes, not catch monitoring. The 

trip-end hail report, in conjunction with 

the requirement for dockside/roving 

monitors to inspect fish holds 

implemented by this final rule, is 

intended to provide sufficient 

information to ensure compliance with 

existing regulations. Moreover, NMFS is 

expected to have sufficient funding in 

FY 2011 to continue the levels of 

observer and at-sea monitoring coverage 

for both sector and common pool trips 

implemented in FY 2010, and to 

augment that with sufficient dockside/ 

roving monitoring coverage for trips not 

monitored by observers or at-sea 

monitors. Even if insufficient funding 

available to NMFS results in a shortterm reduction in dockside/roving 

monitoring data, NMFS agrees that such 

reductions in data would likely be offset 

by long-term benefits of fishing under 

sectors. Therefore, NMFS is approving 

the delay in industry responsibility for 

dockside/roving monitoring costs 

through this final rule. Further changes 

could be considered by the Council 

through a future management action, 

but because NMFS does not have the 

authority to revise measures adopted by 

the Council in FW 45, NMFS cannot 

unilaterally postpone industry 

responsibility for such costs beyond FY 

2012 through this action. 

NMFS disagrees that the proposed 

postponement of industry responsibility 

for dockside/roving and at-sea 

monitoring costs represents a 

fundamental revision of the FMP and 

would circumvent the public process. 

First, the fundamental dockside/roving 

and at-sea monitoring provisions 

implemented by Amendment 16 are 

retained. The only aspect of these 

provisions that changes through FW 45 

is the entity paying for the costs of such 

monitoring. Although NMFS will pay 

for at last some of the costs of dockside/ 

roving and at-sea monitoring coverage 

for FYs 2011 and 2012, and will 

endeavor to achieve the coverage 

requirements specified in Amendment 

16 for industry-funded dockside/roving 

and at-sea monitoring coverage, these 

changes do not constitute a fundamental 

change to the FMP requiring an 

amendment to the FMP. Second, the 

Council fully anticipated that measures 

adopted under Amendment 16 could be 

revised in the future through a FW 

action. This is documented in the 

Amendment 16 FEIS’s executive 

summary when it states, ‘‘The periodic 

adjustment process is modified so that 

all measures adopted can be adjusted on 

a framework action’’ (see page 10 of that 

document) and in Section 4.2.8. This 

was codified in the regulations at 

§ 648.90(a)(2)(iii) and (c)(1)(i). Both the 

Amendment 16 FEIS and the proposed 

regulations to implement Amendment 

16 measures were made available for 

extensive public comment. Therefore, 

because the fundamental aspects of the 

Amendment 16 sector and common 

pool monitoring measures are not 

affected by the proposed delay in 

responsibility for monitoring costs, and 

that the public was afforded substantial 

opportunity to comment on the ability 

of the Council and NMFS to revise 

existing management measures through 

a FW action as part of the Amendment 

16 proposed rule, NMFS has not 

remanded this provision back to the 

Council for implementation through an 

amendment to the FMP. 

Sector Measures 

Comment 18: FWW claimed that it 

was unfair to distribute the PSCs of 

cancelled NE multispecies permits to all 

valid limited access NE multispecies 

permits, suggesting that it was a poor 

use of available and ‘‘un-owned’’ quota. 

Instead, they recommended that the PSC 

of cancelled permits should be 

distributed to state-operated permit 

banks. They contended that this would 

signify a return to the general public for 

the use of its resources. 

Response: NMFS disagrees that it is 

unfair to distribute the PSCs of 

cancelled NE multispecies permits to all 

valid limited access NE multispecies 

permits. The National Standard 4 

Guidelines state that, if it becomes 

necessary to allocate or assign fishing 

privileges among U.S. fishermen, such 

allocations shall be ‘‘fair and equitable 

to all such fishermen.’’ The proposed 

distribution to all valid limited access 

permits is consistent with National 

Standard 4 because it treats all permits 

equally and distributes PSCs associated 

with cancelled permits among all 

permits that may participate in the NE 

multispecies fishery. Therefore, NMFS 

implements this measure through this 

action. 

Comment 19: An individual 

commercial fisherman recommended 

that sector rosters should be reopened 

now that common pool trip limits are 

proposed. He contended that there was 

not enough information about potential 

common pool trip limits to make an 

informed decision whether to join a 

sector by either the September or 

December sector roster deadlines. The 

Council also suggested that NMFS 

consider reopening sector rosters for the 

reasons noted above following public 

input at the March 17, 2011, Groundfish 

Oversight Committee meeting. 

Response: As highlighted in Item 11 

of this preamble and in a March 23, 

2011, letter to permit holders, based on 

industry input, NMFS is allowing for a 

limited opportunity for additional 

changes to FY 2011 sector rosters to 

accommodate changes in vessel 

ownership that occurred after the 

submission of final sector rosters on 

December 1, 2010. This window to 

reopen FY 2011 sector rosters began on 

March 23, 2011, and will end on April 

30, 2011. In future years, a window for 

additional sector roster changes would 

begin with the publication of proposed 

measures for the common pool for the 

following year and end on April 30, and 

would be limited to ownership changes 

occurring after the December 1 roster 

deadline. This is intended to provide 

vessel owners with the information they 

need to make an informed decision 

about whether to participate in sectors 

during the following FY, without 

undermining public consideration of 

likely sector operations in the following 

fishing year by substantially revising 

sector rosters following an opportunity 

to comment on proposed sector 

operations plans. 

Comment 20: One industry group 

(NSSN) and the Council supported the 

proposed delay of the existing 14-day 

window for sectors to complete ACE 

transfers after the end of the FY to 

ensure that sectors had sufficient time to 

consider and incorporate final NMFS 

evaluations of sector catch before they 

sought to acquire additional ACE to 

rectify any overages of sector ACE from 

the previous FY. 

Response: NMFS agrees, and 

implements revisions to the existing 

regulations at § 648.87(b)(1)(iii)(C) and 

(b)(1)(viii) to allow for additional time 

that might be necessary to determine 


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estimates of final sector catch and 

balance sector overages from the 

previous FY through this action. 

Comment 21: PEW expressed strong 

support for the approval of new sectors, 

including state-operated permit banks. 

They suggested that permit banks offer 

an important mechanism for preserving 

fishing opportunities for small-scale 

fishermen operating out of small ports 

and helping to protect against excessive 

consolidation in the fishery. 

Response: NMFS agrees and approved 

the creation of new sectors, including 

state-operated permit banks through this 

final rule. 

Comment 22: FWW stated that there 

was some conflicting language about the 

approval of new sectors as part of FW 

45. In the preamble to the FW 45 

proposed rule, they state that language 

suggests that new sectors have not been 

approved, yet language on page 39 of 

the FW 45 EA states that they are 

already approved and will become 

effective on May 1, 2011. Overall, 

however, comments by FWW did not 

outright oppose the implementation of 

new state-operated permit bank sectors, 

but rather suggested that such permit 

banks are indicative of their underlying 

concern with the privatization that 

occurs with catch shares. They suggest 

an alternative approach that would 

allow catch shares to be rented out to 

eligible entities. This would avoid the 

need to fund permit banks with 

taxpayer dollars and allow the Federal 

government to control pricing so that 

cost of fishing is always reasonable and 

can facilitate participation of small 

vessels in the fishery, thereby allowing 

managers to prioritize environmental, 

economic, and social goals of the 

fishery. 

Response: Five new sectors were 

adopted by the Council in FW 45. 

However, to become effective, these 

sectors must still be approved by the 

Secretary through proposed and final 

rulemaking. Therefore, the language in 

the FW 45 EA incompletely described 

the process for approving sectors and 

their operations on a yearly basis. The 

Council adopted the creation these new 

sectors as part of FW 45, but they are 

not officially approved until the 

Secretary approves measures contained 

in FW 45 and the regulations 

implementing such provisions. Because 

the creation of these sectors is 

consistent with the FMP and applicable 

law, they are officially approved 

through FW 45 and implemented 

through this final rule. However, to 

operate on a yearly basis, all sectors 

must submit an operations plan and 

contract by specific deadlines. These 

yearly operations plans must further be 

approved by the sector through a 

separate rulemaking from the 

rulemaking to approve the creation of 

such sectors. 

In their comment, FWW suggested 

that rather than allocating fishing 

privileges to fishing entities, fishery 

managers should require eligible fishing 

entities to rent fishing rights. As noted 

above, NMFS cannot substitute existing 

management measures with FWW’s 

suggested approach through this final 

rule. However, this approach could be 

considered by the Council through a 

future management action. 

Nevertheless, it should be noted that 

their proposal would likely increase 

operational costs to all vessel owners 

that are interested in actively 

participating in the NE multispecies 

fishery, as both small and large vessels 

would be potentially obligated to 

purchase catch shares at the beginning 

of each FY. Depending on other 

operational costs associated with each 

particular vessel, it may not be feasible 

to continue to participate in the fishery 

given such expenses. This could lead to 

economic impacts to both these entities 

and supporting fishing communities 

that would be beyond those associated 

with the current management regime. 

Further, it may not be fair and equitable 

to impose different costs on different 

vessels based on size alone. 

Accordingly, FWW’s proposal may not 

be consistent with National Standards 4 

and 8 of the Magnuson-Stevens Act, as 

summarized in FWW’s comment. 

Measures for FY 2011 Under RA 

Authority 

Comment 23: One commercial 

fisherman expressed concern that the 

proposed initial common pool trip 

limits for FY 2011 are insufficient to 

allow vessels to cover operational 

expenses. He stated that he prefers 

higher DAS counting rates and 

proportional increases in trip limits to 

allow vessel owners/operators to cover 

expenses and decrease bycatch by 

turning discards into landings. The 

Council also suggested that NMFS 

consider increasing trip limits and DAS 

counting so common pool trips are 

profitable and ACLs are not exceeded 

during FY 2011, following public input 

at the March 17, 2011, Groundfish 

Oversight Committee meeting. 

Response: Because the realized 

fishing activity and associated expenses 

for each vessel may be very different, as 

documented in the Amendment 16 

FEIS, it is very difficult to determine the 

appropriate combination of trip limits 

and DAS counting rates that would 

ensure that all common pool trips are 

profitable. Some vessel owners/ 

operators may elect to target some 

species early in the FY based on historic 

operations and operator knowledge, 

while others may prefer to operate later 

in the FY to target other species and 

capitalize on the generally higher prices 

during the winter when fish supply is 

lower. Therefore, any combination of 

trip limits and DAS rates would likely 

benefit some, but not all vessels 

operating in the common pool. 

The RA has the authority to revise trip 

limits and DAS rates to ensure that the 

common pool achieves, but does not 

exceed allocated sub-ACLs throughout 

the FY. Generally, NMFS has 

endeavored to ensure that the fishery 

remains open throughout the FY to 

provide the most flexibility in fishing 

operations to accommodate seasonal 

distribution of fish, fluctuations in 

market price, and operational 

preferences of vessel owners/operators. 

This was the approach employed in 

proposing initial FY 2011 common pool 

trip limits in the proposed rule for this 

action. The proposed FY 2011 DAS 

counting rate was based on a formulaic 

rate necessary to account for projected 

overages of specific sub-ACLs by the 

common pool during FY 2010. Because 

NMFS has the flexibility to adjust trip 

limits and DAS counting rates 

throughout the year, NMFS can adapt to 

fishing behavior to either increase or 

decrease trip limits and, to some degree, 

DAS counting rates. Therefore, NMFS 

implements the common pool trip limits 

and DAS counting rates outlined in Item 

13 of this preamble for FY 2011. For 

some stocks, these trip limits reflect the 

highest trip limit from the range of trip 

limits considered in Table 16 of the 

proposed rule for this action to increase 

the profitability of common pool trips 

without compromising efforts to ensure 

that the common pool sub-ACLs are not 

exceeded during FY 2011. NMFS will 

continue to monitor catch rates and will 

adjust such measures as necessary to 

achieve the goals of the FMP, including 

increasing the profitability of individual 

trips, if available data suggest that such 

an action is warranted. 

Corrections and Clarifications 

Comment 24: The NEHFA and one 

commercial fisherman expressed 

support for the clarification of PSC text 

to specifically clarify how PSCs will be 

calculated for handgear permits using 

landings histories of handgear permits 

during FYs 1996–2006. 

Response: As outlined in the 

preamble of the proposed rule for this 

action, NMFS believes these changes are 

necessary to accurately reflect the intent 

of the Council in Amendment 16 and 

the manner in which PSC are actually 


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calculated by NMFS starting in FY 2011. 

Therefore, these changes have been 

implemented through this final rule. 

Comment 25: One sector manager, 

commenting on the proposed rule to 

approve FY 2011 sector operation plans, 

commented in support of delaying the 

opening of the Eastern U.S./Canada 

Area only to common pool vessels until 

August 1, 2011, and allowing sector 

vessels to access this area on May 1, 

2011. He noted that all sector vessels 

fish under a hard TAC in all areas, 

including the Eastern and Western U.S./ 

Canada Areas. He suggested that access 

to these offshore fishing areas when the 

weather is better during the summer 

months is very important for smaller 

trawl vessels that are not suitable for 

fishing in offshore waters during the 

winter. 

Response: As outlined in the 

preamble of the proposed rule for this 

action, NMFS proposed applying the 

delayed opening of the Eastern U.S./ 

Canada Area only to common pool 

vessels during FY 2011 for the reasons 

offered by the sector manager. 

Therefore, NMFS implements the 

measures originally proposed in the 

proposed rule for this action through 

this final rule. 

Comment 26: The NSC expressed 

support for the proposed change to the 

regulations at § 648.87(b)(1)(i)(C) to 

clarify that any sector ACE carried over 

into the next FY would be calculated 

based on 10 percent of the ACE 

originally allocated to the sector at the 

start of the previous FY. However, the 

NSC disagreed with the characterization 

of that proposed change in the preamble 

of the proposed rule for this action that 

states ‘‘a NE multispecies sector may 

carry-over up to 10 percent of its 

allocated ACE for each stock * * * into 

the following FY, provided the sector 

has not harvested more than 90 percent 

of its original allocation for that stock by 

the end of the FY.’’ They contend that 

the preamble text suggests that if a 

sector leases in ACE from another and 

used more than 90 percent of its 

allocation, then it would not be able to 

carry over any ACE into the next FY. In 

doing so, this interpretation would 

destroy the utility of carry over 

provisions and distorts ACE trading 

system. They recommend that NMFS 

remove the contested preamble text 

from the final rule, as it could be used 

to interpret any ambiguities in the 

implementation of this provision in the 

future. 

Response: NMFS recognizes that the 

preamble text referenced in NSC’s 

comment could be interpreted in a way 

that is counter to the intent of NMFS in 

proposing this correction. Consistent 

with the proposed regulatory text, the 

intent of NMFS was to merely clarify 

that the amount of ACE that can be 

carried over for each stock shall be 

calculated based upon the amount of 

ACE originally allocated to that sector. 

To more accurately reflect the intent of 

NMFS and the Council in originally 

adopting the original ACE carry-over 

provision in Amendment 16, NMFS has 

removed the disputed preamble text and 

inserted an example clarifying how 

NMFS will calculate ACE that can be 

carried over into the next FY into the 

preamble text for this final rule. 

Changes From the Proposed Rule 

NMFS has made two changes to the 

proposed rule, including changes as a 

result of public comment and the 

disapproval of the proposed measure to 

delay industry responsibility for at-sea 

monitoring costs during FY 2012. In 

§ 648.87(b)(5)(i)(A)(1), the phrase ‘‘As 

instructed by the Regional 

Administrator’’ was added to the tripstart hail reporting requirements to 

enable the Regional Administrator to 

augment the data elements contained in 

this report to more effectively 

administer this provision and the 

associated dockside/roving monitor 

coverage levels on a yearly basis. This 

change allows the Regional 

Administrator to require that vessel 

operators declare whether an observer 

or at-sea monitor is assigned for a 

particular trip to facilitate the 

appropriate deployment of dockside/ 

roving monitors in FYs 2011 and 2012 

and achieve the desired coverage levels 

based on available funding, as described 

in Item 10 above. In addition, the 

regulations at § 648.87(b)(1)(v)(B)(2) 

were revised to reflect that the fishing 

industry was responsible for developing 

and paying for any at-sea monitoring 

program developed starting in FY 2012. 

Classification 

The Administrator, Northeast Region, 

NMFS, determined that FW 45 is 

necessary for the conservation and 

management of the NE multispecies 

fishery and that it is consistent with the 

Magnuson-Stevens Fishery 

Conservation and Management Act and 

other applicable laws. 

There is good cause under 5 U.S.C. 

553(d)(3) to establish an effective date 

less than 30 days after the date of 

publication for the measures 

implemented by this final rule. The 

effective date of this action affects a 

parallel rulemaking to approve sector 

operations plans for the start of FY 2011 

on May 1, 2011. Therefore, these actions 

must be in effect at the beginning of FY 

2011 to fully capture their 

environmental and economic benefits of 

FW 45 measures as well as the FY 2011 

sector operations plans. The time 

available for FW 45 was constrained by 

multiple factors, preventing such 

actions from being completed 

sufficiently in advance of May 1, 2011, 

to facilitate the 30-day cooling off 

period. These factors included 

additional time necessary to fully 

analyze measures included in this 

action following revisions to draft 

measures when the Council adopted 

final FW 45 measures at its November 

2010 meeting, and coordinate a special 

meeting of the TMGC to evaluate the 

impacts of the approval of IFACA in 

January 2011 on measures included in 

FW 45. Due to these constraints and 

rationale, this rulemaking could not be 

completed further in advance of May 1, 

2011. Therefore, in order to have this 

action effective at the beginning of FY 

2011, it is necessary to waive a portion 

of [retain as necessary] the 30-day delay 

period for this rule. 

The waiver of a portion of [retain as 

necessary] the 30-day delayed 

effectiveness for this final rule is in the 

public interest because it is necessary to 

implement a number of measures by the 

start of FY 2011 that would benefit the 

NE multispecies fishery at large. 

Specifically, this action incorporates the 

best available scientific information for 

both pollock and GB yellowtail 

flounder, specifies and distributes 

revised ACLs for several stocks, 

implements a spawning closure area to 

protect spawning cod in the GOM, 

delays industry responsibility for costs 

associated with catch monitoring, 

increases access to near-shore seasonal 

closure areas by smaller Handgearpermitted vessels, increases LAGC 

vessel access to the Great South Channel 

Exemption Area, and approves the 

creation of five new sectors, among 

other measures. This final rule also 

includes measures that would control 

fishing effort by common pool vessels to 

help prevent the premature or excessive 

harvest of sub-ACLs allocated to the 

common pool during FY 2011. A May 

1, 2011, effective date is necessary in 

order to specify catch levels and 

implement management measures 

necessary to eliminate overfishing and 

continue stock rebuilding, help mitigate 

the adverse economic impacts resulting 

from continued efforts to end 

overfishing and rebuild overfished 

stocks, increase the economic efficiency 

of vessel operations, and prevent 

industry confusion. Failure to waive the 

30-day delay in effectiveness would 

prevent such measures from being 

implemented on May 1, 2011, and could 


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result in short-term adverse economic 

impacts to NE multispecies vessels and 

associated fishing communities that 

were neither anticipated by the Council 

and industry participants, nor analyzed 

in the FW 45 EA and the associated FY 

2011 sector operations plans EA. In 

particular, access to available fishery 

resources would be unnecessarily 

delayed for scallop and Handgearpermitted vessels, and commercial 

vessels would not be able to benefit 

from the substantially increased FY 

2011 GB yellowtail flounder ACL. This 

could result in additional economic 

impacts and reduce the economic 

efficiency of the fleet until such 

measures become effective. Without the 

timely implementation of measures 

specified in this rule, the risk of 

excessive catch by common pool vessels 

would be increased, along with 

potential that the common pool will 

once again exceed its sub-ACL for 

specific stocks. In addition, allowing for 

a full 30-day delayed effectiveness 

period would delay the implementation 

of the GOM Cod Spawning Protection 

Area for up to an additional 30 days 

during which cod will continue to 

spawn. Thus, this delay could 

potentially jeopardize existing efforts to 

end overfishing and rebuild overfished 

stocks. This would be contrary to not 

only the interest of the fishing 

communities, but to the public at large, 

as overfishing and overfished stocks 

decreases the ability of the public to 

enjoy that stock for commercial, 

recreational, aesthetic, or other reasons, 

and reduces the availability of seafood 

to the nation. Therefore, delayed 

implementation of these measures 

beyond May 1, 2011, is impracticable 

and contrary to the public interest, and 

the requirement to delay 

implementation of this rule for a period 

of 30 days is hereby waived. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

This final rule does not contain 

policies with federalism or ‘‘takings’’ 

implications, as those terms are defined 

in E.O. 13132 and E.O. 12630, 

respectively. 

A FRFA was prepared for this action. 

The FRFA incorporates the IRFA, a 

summary of the significant issues raised 

by the public comments in response to 

the IRFA, NMFS responses to those 

comments, a summary of the analyses 

completed in the FW 45 EA and any 

supplements thereto to support the 

action, and this portion of the preamble. 

A summary of the IRFA was published 

in the proposed rule for this action and 

is not repeated here. A description of 

why this action was considered, the 

objectives of, and the legal basis for this 

rule is contained in FW 45 and in the 

preamble to the proposed and this final 

rule, and is not repeated here. All of the 

documents that constitute the FRFA are 

available from NMFS (see ADDRESSES). 

In the FRFA, the baseline (no-action 

alternative) is the set of measures that 

were in place during FY 2010 (i.e., the 

measures implemented under 

Amendment 16 and FW 44). Tables and 

sections that are referenced in this 

FRFA refer to those contained in the EA 

developed for FW 45. A copy of FW 45 

is available from the Council (see 

ADDRESSES). 

A supplemental EA was developed to 

analyze the impacts of the emergency 

action to increase the FY 2011 GB 

yellowtail flounder TAC for the U.S./ 

Canada Management Area and the 

associated ABC and ACL for this stock. 

The economic impact on affected 

entities resulting from increasing the FY 

2011 GB yellowtail flounder TAC, ABC, 

and ACL is expected to be positive, 

because it will provide additional 

fishing opportunity and fishing revenue 

for vessels participating in NE 

multispecies fishery and the scallop 

fishery during FY 2011. Based on 

historic information, the groundfish 

fishery is able to land close to the full 

amount of GB yellowtail flounder 

allowed. The estimated revenue from 

the sale of GB yellowtail flounder under 

the increased catch limits is 

approximately $2 million, compared 

with $1.4 million if the original FY 2011 

TAC, ABC, and ACL adopted in FW 45 

were to be implemented instead. Based 

on a conservative estimate using FY 

2010 data, for every dollar of yellowtail 

flounder revenue, there is at least $10 of 

revenue from other species. The 

additional revenue due to the catch of 

other species could be worth 

approximately ten times the difference 

between the GB yellowtail flounder 

revenue under the original catch limits 

and the increased catch limits 

implemented by this action (10 × 

$641,272), or approximately $6.4 

million (if the total GB yellowtail 

flounder TAC is caught, and fishing 

effort on GB ceases consistent with 

existing regulations). 

With respect to the scallop fishery, 

the increased catch limit implemented 

by this action will result in a larger cap 

on the amount of GB yellowtail flounder 

than can be caught in the scallop access 

areas. A larger cap may indirectly 

enable greater scallop revenue for the 

scallop fishery, particularly if the GB 

yellowtail flounder cap becomes 

limiting to the scallop fishery in the 

Closed Area II Scallop Access Area. It is 

difficult to predict the amount of GB 

yellowtail flounder that will be caught 

in the Closed Area II Scallop Access 

Area in FY 2011 due to the variability 

of scallop fishing effort, as well as 

scallop and yellowtail flounder catch 

rates. However, a larger cap on the 

amount of GB yellowtail flounder that 

can be caught in the scallop access areas 

enhances the ability of the scallop 

industry to plan fishing operations, and 

will minimize disruption to fishing 

activities. 

Summary of the Significant Issues 

Raised by Public Comments in Response 

to the IRFA. A Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made From the Proposed Rule as a 

Result of Such Comments 

Comment A: As noted above in 

Comment 16, several commenters 

suggested that the proposed requirement 

for dockside/roving monitors to inspect 

fish holds will expose vessel owners to 

a risk of a lawsuit stemming from any 

potential injury to such monitors when 

boarding the vessel or inspecting fish 

holds even if the dockside/roving 

monitoring service providers had 

sufficient insurance coverage. These 

commenters asserted that this potential 

risk will force vessel owners to buy 

more insurance to ensure that they are 

adequately covered for any potential 

liability lawsuits that might result from 

this provision. In doing so, they contest 

that this would contradict the FW 45 

economic analysis that indicates that 

this measure should not impact either 

vessel owners or service providers. 

Response: The existing regulations 

require dockside/roving monitor service 

providers to have adequate insurance to 

cover injury, liability, or accidental 

death that might befall dockside/roving 

monitors in the conduct of their duties. 

However, NMFS recognizes that despite 

such coverage, individual dockside/ 

roving monitors still have the capacity 

to file a lawsuit against vessel owners 

for any injuries incurred while 

inspecting fish holds. As noted in the 

response to Comment 16 above, NMFS 

encourages sectors and dockside/roving 

monitor service providers to seek 

agreement on how to best address the 

issues and problems raised by the 

comment. NMFS does not have 

sufficient information to evaluate the 

potential increase in costs associated 

with any additional insurance coverage 

that vessel owners may be inclined to 

purchase to protect them from any 

liability associated with dockside/ 

roving monitors inspecting fish holds. 

The risks associated with the liability 

for injuries to dockside/roving monitors 

inspecting fish holds appear to be 


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somewhat similar to those associated 

with having to accommodate an 

observer and, therefore, may be 

instructive on how to consider 

insurance costs for dockside monitoring. 

NMFS is committed to reviewing the 

requirement to inspect fish holds and 

the costs associated with it over time as 

more information becomes available. 

Description of and Estimate of the 

Number of Small Entities to Which the 

Final Rule Will Apply 

The measures implemented by this 

action affect recreational anglers and 

any vessel issued a limited access NE 

multispecies permit, an open access NE 

multispecies Handgear B permit 

(Handgear B permit) or charter/party 

permit, or a LAGC scallop permit. In 

addition, because this action affects the 

dockside/roving and at-sea or electronic 

monitoring program requirements and 

require dockside monitors to inspect 

fish holds, this action also affects any 

entity intending to provide dockside/ 

roving or at-sea or electronic monitoring 

services. As of December 20, 2010, the 

maximum number of small fishing 

entities (as defined by the Small 

Business Administration (SBA)) that 

may be affected by this action is 3,935 

entities. These affected entities include 

1,144 limited access NE multispecies 

DAS permit holders; 133 limited access 

NE multispecies Handgear A (Handgear 

A) permit holders; 11 limited access NE 

multispecies Small Vessel Exemption 

(Category C) permit holders; 1,156 open 

access NE multispecies Hangear B 

(Handgear B) permit holders; 824 open 

access NE multispecies charter/party 

permits; and 667 Atlantic sea scallop 

LAGC permits. It is likely that the actual 

number of small fishing entities affected 

by this action would be much smaller. 

For instance, information contained in 

Section 10.11.2 of the FW 45 EA 

indicates that only 397 vessels had 

reported any sales of regulated species 

and ocean pout as of December 2010, 

including 18 Handgear A vessels, 50 

Handgear B vessels, and 329 other 

vessels issued limited access NE 

multispecies DAS permits. Further, 

according to that analysis, only 18 

entities conducted party/charter 

operations in the GOM Cod Spawning 

Protection Area implemented by this 

action. It is difficult to estimate the 

number of private recreational anglers 

that may be affected by this action, as 

the GOM Cod Spawning Protection Area 

implemented by this action is too small 

to accurately determine the number of 

anglers that fish in this area based on 

available data. Finally, it is expected 

that the five entities currently providing 

dockside/roving monitoring and at-sea 

or electronic monitoring services would 

continue to do so in FYs 2011 and 2012, 

and would be affected by this action. As 

of March 28, 2011, four of these entities 

have submitted an application to 

provide dockside/roving monitoring 

services for FY 2011. 

It is important to note that past fishing 

activity and enrollment in sectors may 

not be an accurate predictor of future 

fishing activity. In particular, it is 

possible that revisions to measures 

affecting both the Handgear A and 

Handgear B fisheries may increase 

participation by vessels issued such 

permits. As of December 1, 2010, 836 

permits had elected to join a sector 

during FY 2011, as determined through 

the submission of sector rosters to 

NMFS, indicating that 452 permits 

would be enrolled in the common pool 

during FY 2011. However, vessels may 

withdraw from sectors through April 30, 

2011. Therefore, because participation 

in sectors is voluntary, the number of 

vessels that will actually participate in 

sectors during FY 2011 and future years 

is likely to fluctuate based upon 

whether joining a sector or fishing 

under common pool measures offers the 

greater economic advantage to each 

individual vessel. 

The SBA considers commercial 

fishing entities (NAICS code 114111) to 

be small entities if they have no more 

than $4 million in annual sales, while 

the size standard for charter/party 

operators (part of NAICS cod 487210) is 

$7 million in sales. Based on 2005–2007 

average conditions, median gross sales 

by commercial fishing vessels were just 

over $200,000, and no single fishing 

entity earned more than $2 million. For 

regulated charter/party operators, the 

median value of gross receipts from 

passengers was just over $9,000, and did 

not exceed $500,000 in any year during 

2001 to 2007. The vessels in the Atlantic 

sea scallop fishery are considered small 

business entities because all of them 

grossed less than $3 million according 

to the dealer’s data for FYs 1994 to 

2009, consistent with analyses under 

the RFA for recent scallop actions. 

Although multiple vessels may be 

owned by a single owner, available 

tracking of ownership is not readily 

available to reliably ascertain affiliated 

entities. Therefore, for the purposes of 

this analysis, each permitted vessel is 

treated as a single small entity and is 

determined to be a small entity under 

the RFA. Accordingly, there are no 

differential impacts between large and 

small entities under this final rule. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Final Rule 

The only reporting and recordkeeping 

requirements affected by this final rule 

are the request for a LOA to fish south 

of the GOM RMA by Handgear A and 

Handgear B vessels, or a similar 

declaration via VMS prior to each trip 

by Handgear A vessels required to use 

VMS under the existing regulations, and 

the trip-end hail report already 

approved as part of Amendment 16. 

This action does not impose any new 

reporting or recordkeeping requirements 

that have not already been in existence. 

However, it requires additional vessels 

(handgear-permitted vessels) to comply 

with the LOA requirements and 

mandates that common pool vessels 

submit trip-end hail reports earlier than 

expected when originally implemented 

under Amendment 16. Existing 

reporting and recordkeeping 

requirements for the dockside/roving 

and at-sea or electronic monitoring 

programs approved under Amendment 

16 have been included below for 

reference. 

The costs associated with the 

reporting and recordkeeping 

requirements supporting measures 

implemented by this action are detailed 

in the Paperwork Reduction Act (PRA) 

analysis associated with Amendment 16 

and the permit family of forms for the 

Northeast Region of NMFS. The time 

burden associated with a telephone call 

to request for a LOA to fish south of the 

GOM RMA is estimated at 5 minutes, 

with no costs to vessels requesting such 

a LOA. The cost associated with a 

similar declaration via VMS is estimated 

to be $0.50 per submission. For the tripend hail reports, the yearly cost to each 

vessel is estimated to be approximately 

$17, assuming that such reports were 

made via VMS. Costs would likely be 

lower if such reports were submitted via 

another medium. Costs to vessels 

receiving dockside/roving monitoring 

services implemented under 

Amendment 16 include $10 per year for 

confirming pre-trip hail reports and $13 

per year to confirm trip-end hail reports 

and specify whether a particular trip 

would be observed by a dockside 

monitor. Requirements to maintain and 

enter data into a dockside monitoring 

database are estimated to cost 

approximately $4,225 per service 

provider annually, while submitting 

dockside monitoring data to NMFS is 

likely to cost each service provider 

approximately $36,000 per year. Similar 

costs to service providers are expected 

to notify sector vessels of selection for 

at-sea/electronic monitoring coverage 


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($3,125 per year) and to submit at-sea or 

electronic monitoring data to NMFS 

($36,000 per year). 

This final rule contains a collectionof-information requirement subject to 

the PRA and which has been approved 

by OMB under the various OMB control 

numbers listed below. Public reporting 

burden for these collections of 

information are estimated to average, as 

follows: 

1. VTR submissions, OMB# 0648– 

0605, (5 min/response); 

2. Sector operations plan and 

associated NEPA analysis, OMB# 0648– 

0605, (640 hr/response); 

3. Dockside/at-sea monitoring service 

provider application, OMB# 0648–0605, 

(10 hr/response); 

4. Dockside/at-sea monitoring service 

provider response to application 

disapproval, OMB# 0648–0605, (10 hr/ 

response); 

5. Data entry for sector discard 

monitoring system, OMB# 0648–0605, 

(3 min/response); 

6. Sector weekly catch report, OMB# 

0648–0605, (4 hr/response); 

7. Sector annual report, OMB# 0648– 

0605, (12 hr/response); 

8. Notification of expulsion from a 

sector, OMB# 0648–0605, (30 min/ 

response); 

9. Request to transfer ACE, OMB# 

0648–0605, (5 min/response); 

10. VMS certification form, OMB# 

0648–0605, (10 min/response); 

11. VMS confirmation call, OMB# 

0648–0605, (5 min/response); 

12. VMS area and DAS declaration, 

OMB# 0648–0605, (5 min/response); 

13. VMS trip-level catch reports, 

OMB# 0648–0605, (15 min/response); 

14. Request for a LOA to participate 

in the GOM Haddock Gillnet Pilot 

Program, OMB# 0648–0605, (5 min/ 

response); 

15. Request for a LOA to fish in a NE 

multispecies RGA, OMB# 0648–0605, (5 

min/response); 

16. VMS declaration to fish in a NE 

multispecies RGA, OMB# 0648–0605, (5 

min/response); 

17. Pre-trip hail report to a dockside 

monitoring service provider, OMB# 

0648–0605, (2 min/response); 

18. Trip-end hail report to a dockside 

monitoring service provider, OMB# 

0648–0605, (15 min/response); 

19. Confirmation of dockside 

monitoring trip-end hail report, OMB# 

0648–0605, (2 min/response); 

20. Dockside/roving service provider 

data entry, OMB# 0648–0605, (3 min/ 

response); 

21. Dockside/roving or at-sea monitor 

deployment report, OMB# 0648–0605, 

(10 min/response); 

22. Dockside/roving or at-sea 

monitoring service provider catch report 

to NMFS upon request, OMB# 0648– 

0605, (5 min/response); 

23. Dockside/roving or at-sea monitor 

report of harassment and other issues, 

OMB# 0648–0605, (30 min/response); 

24. OLE debriefing of dockside/roving 

or at-sea monitors, OMB# 0648–0605, (2 

hr/response); 

25. Copy of dockside/roving or at-sea 

monitoring service provider contract 

upon request, OMB# 0648–0605, (30 

min/response); 

26. Copy of dockside/roving or at-sea 

monitoring service provider information 

materials upon request, OMB# 0648– 

0605, (30 min/response); 

27. Observer program pre-trip 

notification, OMB# 0648–0605, (2 min/ 

response); 

28. Daily VMS catch reports when 

fishing in the U.S./Canada Management 

Area and CA II SAPs, OMB# 0648–0605, 

(15 min/response); 

29. Daily VMS catch reports when 

fishing in the CA I Hook Gear Haddock 

SAP, OMB# 0648–0605, (15 min/ 

response); 

30. Daily VMS catch reports when 

fishing in the Regular B DAS Program, 

OMB# 0648–0605, (15 min/response); 

31. Copy of the dealer weigh-out slip 

or dealer signature of the dockside 

monitor report, OMB# 0648–0605, (2 

min/response); 

32. Forward trip start/end hails to 

NMFS, OMB# 0648–0605 (2 min/ 

response); 

33. Notification to vessel/sector/ 

NMFS of monitor emergency, OMB# 

0648–0605 (5 min/response); 

34. Initial vessel application for a 

limited access Handgear A permit, OMB 

Control Number 0648–0202, (10 min/ 

response); 

35. DAS Transfer Program 

application, OMB Control Number 

0648–0202, (5 min/response); 

36. VMS purchase and installation, 

OMB Control Number 0648–0202, (1 hr/ 

response); 

37. Automated VMS polling of vessel 

position twice per hour while fishing 

within the U.S./Canada Area, OMB 

Control Number 0648–0202, (5 sec/ 

response); 

38. VMS proof of installation, OMB 

Control Number 0648–0202, (5 min/ 

response); 

39. Expedited submission of a 

proposed SAP, OMB Control Number 

0648–0202, (20 hr/response); 

40. Request to power down VMS for 

at least 1 month, OMB Control Number 

0648–0202, (5 min/response); 

41. Request for an LOA to participate 

in the GOM Cod Landing Exemption, 

OMB Control Number 0648–0202, (5 

min/response); 

42. Request for an LOA to participate 

in the Skate Bait-only Possession Limit 

Exemption, OMB Control Number 

0648–0202, (5 min/response); 

43. Submission of a sector allocation 

proposal, OMB Control Number 0648– 

0202, (50 hr/response); 

44. DAS ‘‘flip’’ notification via VMS 

for the Regular B DAS pilot program, 

OMB# 0648–0202 (5 min/response); 

45. DAS ‘‘flip’’ notification via VMS 

for the Eastern U.S./Canada Haddock 

SAP Pilot Program, OMB# 0648–0202 (5 

min/response); 

46. NMFS Office of Law Enforcement 

landings notice requirement for 

Category 1 herring vessels operating 

with an observer waiver, OMB# 0648– 

0521, (5 min/response); 

47. Notification and Communication 

with USCG and Center for Coastal 

Studies, OMB# 0648–0521, (10 min/ 

response); 

48. Written requests to receive a DAS 

credit for standing by an entangled 

whale, OMB# 0648–0521, (30 min/ 

response); 

49. Vessel baseline downgrade request 

for the DAS Leasing Program, OMB# 

0648–0475, (1 hr/response); 

50. Spawning block declaration, 

OMB# 0648–0202 (2 min/response); 

51. Sector Manager daily reports for 

CA I Hook Gear Haddock SAP, OMB# 

0648–0212 (2 hr/response); 

52. DAS Leasing Program application, 

OMB# 0648–0475 (10 min/response); 

and 

53. Declaration of intent to fish inside 

and outside of the Eastern U.S./Canada 

Area on the same trip, OMB# 0648–0202 

(5 min/response). 

These estimates include the time 

required for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. Send 

comments regarding these burden 

estimates or any other aspect of this data 

collection, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

Description of Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statues 

During the development of 

Framework 45, NMFS and the Council 


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considered ways to reduce the 

regulatory burden on and provide 

flexibility to the regulated community. 

The approach taken is consistent with 

the recent Presidential Memorandum on 

Regulatory Flexibility, Small Business, 

and Job Creation (January 18, 2011). The 

measures implemented by this final 

rule, in conjunction with the final rule 

to approve FY 2011 sector operations 

plans, minimize the long-term economic 

impacts on small entities to the extent 

practicable. Overall, long-term impacts 

of this final rule, as well as the related 

actions of the FMP, are minimized by 

ensuring that management measures 

and catch levels result in fishing 

mortality rates are sustainable and 

contribute to rebuilding stocks and, 

therefore, maximizing yield, as well as 

providing additional flexibility for 

fishing operations in the short term. In 

particular, this final rule implements 

several measures that directly or 

indirectly provide small entities with 

some ability to offset at least some 

portion of the estimated economic 

impacts associated with proposed 

measures. The major mitigating 

measures include formal recognizing the 

rebuilt status of pollock; extending the 

rebuilding period for GB yellowtail 

flounder; increasing the FY 2011 GB 

yellowtail flounder U.S./Canada 

Management Area TAC; maintaining 

existing yellowtail flounder allocations 

to the scallop fishery; allowing LAGC 

scallop vessels greater access to the 

Great South Channel Exemption area; 

increasing access to the seasonal closure 

areas for Handgear A and Handgear B 

permits and exempting vessels issued 

these permits and limited access Small 

Vessel Exemption permits from existing 

dockside/roving monitoring 

requirements; delaying requiring sectors 

and common pool vessels to pay for 

dockside/roving and at-sea or electronic 

monitoring; redistributing PSC from 

cancelled permits to all remaining valid 

limited access NE multispecies permits; 

and approving new sectors, including 

state permit banks and a lease-only 

sector. A complete description of why 

each measure was selected can be found 

in the Section 4.0 of the FW 45 EA (see 

ADDRESSES). 

The specification of ACLs for 

components of the groundfish and nongroundfish fisheries, as well as 

additional management measures to 

ensure that such catch levels are not 

exceeded, increase the likelihood that 

the biological objectives of the FMP will 

be met, resulting greater sustainable 

revenue over the long term. Specifically, 

this action formally recognizes that 

pollock is rebuilt, incorporates updated 

biological reference points, and 

specifies higher ACLs for this stock 

based upon updated stock assessment 

data first implemented on a temporary 

basis through a July 20, 2010, 

emergency action (75 FR 41996). This 

action also extends the rebuilding 

program for GB yellowtail flounder and 

indirectly reduces economic impacts on 

NE multispecies vessels by allowing 

higher ACLs to be specified for the 

remainder of the rebuilding program 

compared to the existing rebuilding 

program adopted for this stock. Further, 

this action substantially increases the 

FY 2011 GB yellowtail flounder U.S./ 

Canada Management Area TAC and the 

associated ABC and ACL available to 

commercial vessels based on the 

flexibility provided by IFACA. Such 

increases in available ACL and 

associated vessel revenue would not be 

realized if this action was not 

implemented, as the increased pollock 

ACL implemented by the July 20, 2010, 

emergency rule would expire on July 17, 

2011, and the GB yellowtail flounder 

U.S./Canada Management Area TAC 

and the associated ABC and ACL would 

expire on April 30, 2011, because this 

TAC is approved on a yearly basis 

following annual recommendations by 

the TMGC. Finally, this action 

maintains the actual yellowtail flounder 

allocations to the scallop fishery that 

were implemented by the FW 44 final 

rule for FY 2010, instead of updating 

those allocations to reflect revised 

estimates of the amount of yellowtail 

flounder bycatch expected in the scallop 

fishery during FY 2011. Updated 

estimates would have lowered the 

yellowtail allocations to the scallop 

fishery for FY 2011 and potentially 

resulted in reduced fishing revenue for 

the scallop fishery. Together, these 

provisions increase the amount of these 

stocks available to commercial vessels 

without compromising the conservation 

of objectives of the FMP to prevent 

overfishing and rebuild overfished 

stocks, thereby likely increasing vessel 

revenues from landing these and other 

stocks by reducing the likelihood that 

low ACLs for these stocks will 

unnecessarily restrict vessel operations 

in FY 2011 and mitigating adverse 

economic impacts of recent effort 

controls in the fishery. 

This final rule mitigates economic 

impacts to LAGC scallop vessels by 

eliminating the yellowtail flounder peak 

spawning closure areas in the Great 

South Channel Exemption Area and 

enabling LAGC scallop vessels greater 

access to this area. If this measure 

reduces operational costs by allowing 

vessels to operate in a more efficient 

manner, it could increase the economic 

efficiency of vessel operations and 

increase the value of the IFQ permits. 

Not implementing this measure would 

likely cause fishing operations by LAGC 

scallop vessels to be less efficient, 

increasing operational costs by requiring 

such vessels to steam farther to open 

fishing grounds. This action does not 

compromise efforts to protect overfished 

stocks of yellowtail flounder, as the 

yellowtail flounder spawning closure 

areas were first implemented at a time 

when LAGC scallop vessels were not as 

restricted in the amount scallop trips 

that they could take as they are now. 

Therefore, these closures were necessary 

to prevent the excessive harvest of 

yellowtail flounder as bycatch by LAGC 

scallop vessels, but are now no longer 

required following the implementation 

of more restrictive measures to control 

scallop catch by these vessels in the 

form of an individual fishing quota 

system as part of Amendment 11 to the 

Atlantic Sea Scallop FMP (April 14, 

2008; 72 FR 20090). 

This action implements several 

measures that reduce operational costs 

to vessels, on both a temporary and 

indefinite basis. Specifically, this action 

indefinitely exempts NE multispecies 

Handgear A, Handgear B, and Small 

Vessel Exemption Category permits 

from dockside/roving monitoring 

requirements, delays industry 

responsibility for paying for dockside/ 

roving monitoring coverage until FY 

2013, and delays industry responsibility 

for paying for a sector at-sea monitoring 

program until FY 2013. Delaying the 

fishing industry’s responsibility to pay 

for dockside/roving monitors and 

exempting handgear and Small Vessel 

category permits from the dockside/ 

roving monitoring requirements would 

save approximately $281,000 per year 

(assuming 20 percent of trips would be 

covered), while delaying the 

responsibility for paying for at-sea 

monitoring would save industry about 

$5 million per year (assuming 30 

percent of trips would be covered). Such 

cost savings would not be realized if 

such measures are not implemented. 

Therefore, this action attempts to 

minimize operational costs to affected 

vessels as the fishery continues to adapt 

to substantial changes to management 

measures, including ACLs, AMs, and an 

expansion of sector measures, and 

overfished stocks continue to rebuild. 

Allowing vessels with handgear 

permits access to at least some of the 

seasonal closure areas is likely to 

increase the chance that such permits 

could increase their catch of regulated 

species, particularly during the early 

months of the fishing season before trip 


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23070 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

limits may be reduced to prevent the 

overall ACLs from being exceeded. In 

addition to increasing the operational 

efficiency of such vessels by increasing 

catch rates and reducing operational 

costs (fuel, primarily), because these 

vessels are small and use relatively 

inefficient gear to catch fish, these 

measures allow vessels to fish closer to 

shore during periods of better weather 

instead of forcing them to fish farther 

offshore in areas that are not subject to 

seasonal closures. Such benefits would 

not be realized if this action is not 

implemented. 

This action recalculates the PSC for 

each stock on a yearly basis to reflect 

the elimination of landings histories 

from cancelled permits, and 

redistributes such landings histories to 

all valid limited access NE multispecies 

permits. This replaces the previous 

practice of using the landing histories of 

cancelled permits to contribute to the 

sub-ACL specified for the common pool 

based on the interpretation that if a 

permit has not signed up to join a sector 

it is, by default, in the common pool. 

The magnitude of the impact from this 

provision is likely to be small, as few 

permits have been cancelled since the 

PSCs were calculated using permits 

valid as of May 1, 2008. Cancelled 

permits represent only about 72,000 lb 

(32,659 kg) of all species combined that 

is divided among the 1,288 valid limited 

access NE multispecies permits based 

on each permit’s individual fishing 

history. Thus, this measure, in itself, is 

unlikely to make an unprofitable fishing 

operation marginally profitable. 

Nevertheless, this action provides some 

positive benefit and increased economic 

opportunity to all remaining permit 

holders, and may increase the amount of 

ACE available on the market to lease. 

As noted in the proposed rule for this 

action, the approval of new sectors, 

including state permit banks and a 

lease-only sector, as part of this action 

is likely to help to reduce vessel 

operational costs by increasing the 

amount of DAS and ACE available on 

the leasing market, reducing market 

price for such additional fishing 

opportunities, and increasing 

competition in the leasing market by 

providing alternative means to acquire 

the ACE necessary for to help vessels 

remain financially solvent. In addition, 

it is possible that the lease-only sector 

could reduce sector monitoring fees due 

to the presumption that participating 

vessels would not be actively fishing, 

but rather exist for the sole purpose of 

providing PSC that the sector may use 

to enable other sectors to continue 

fishing. 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity compliance 

guides.’’ The agency shall explain the 

actions a small entity is required to take 

to comply with a rule or group of rules. 

As part of this rulemaking process, a 

letter to permit holders that also serves 

as small entity compliance guide (the 

guide) was prepared. Copies of this final 

rule are available from the Northeast 

Regional Office, and the guide (i.e., 

permit holder letter) will be sent to all 

holders of permits for the fishery. The 

guide and this final rule will be 

available upon request. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: April 18, 2011. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

For the reasons stated in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

Authority: 16 U.S.C. 1801 et seq. 

■ 2. In § 648.10, revise paragraph (k)(1) 

to read as follows: 

§ 648.10 VMS and DAS requirements for 

vessel owners/operators. 

* * * * * 

(k) * * * 

(1) Reporting requirements for all 

limited access NE multispecies vessel 

owners or operators. In addition to any 

other reporting requirements specified 

in this part, the owner or operator of any 

vessel issued a limited access NE 

multispecies permit on either a common 

pool or sector trip must declare the 

following information via VMS or IVR, 

as instructed by the Regional 

Administrator: 

(i) Broad stock area(s) to be fished. To 

fish in any of the broad stock areas, the 

vessel owner or operator must declare 

his/her intent to fish within one or more 

of the NE multispecies broad stock 

areas, as defined in paragraph (k)(3) of 

this section, prior to leaving port at the 

start of a fishing trip; 

(ii) VTR serial number. On its return 

to port, prior to crossing the VMS 

demarcation line, as defined at § 648.10, 

the vessel owner or operator must 

provide the VTR serial number for the 

first page of the VTR for that particular 

trip, or other applicable trip ID specified 

by NMFS; and 

(iii) Trip-end hail report. Unless 

otherwise required to comply with both 

the dockside/roving monitoring tripstart and trip-end hail reports pursuant 

to § 648.87(b)(5), beginning in fishing 

year 2011 (May 1, 2011), upon its return 

to port and prior to crossing the VMS 

demarcation line as defined in § 648.10, 

the owner or operator of any vessel 

issued a limited access NE multispecies 

permit that is subject to the VMS 

requirements specified in paragraph 

(b)(4) of this section must submit a tripend hail report to NMFS via VMS, as 

instructed by the Regional 

Administrator. The trip-end hail report 

must include at least the following 

information, as instructed by the 

Regional Administrator: The vessel 

permit number; VTR serial number, or 

other applicable trip ID specified by 

NMFS; intended offloading location(s), 

including the dealer name/offload 

location, port/harbor, and state for the 

first dealer/facility where the vessel 

intends to offload catch and the port/ 

harbor, and state for the second dealer/ 

facility where the vessel intends to 

offload catch; estimated date/time of 

arrival; estimated date/time of offload; 

and the estimated total amount of all 

species retained, including species 

managed by other FMPs (in pounds, 

landed weight), on board at the time the 

vessel first offloads its catch from a 

particular trip. The trip-end hail report 

must be submitted at least 6 hr in 

advance of landing for all trips of at 

least 6 hr in duration or occurring more 

than 6 hr from port. For shorter trips, 

the trip-end hail reports must be 

submitted upon the completion of the 

last tow or hauling of gear, as instructed 

by the Regional Administrator. 

* * * * * 

■ 3. In § 648.14, revise paragraph 

(k)(7)(i)(B); and add paragraphs (k)(9)(i), 

(k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read 

as follows: 

§ 648.14 Prohibitions. 

* * * * * 

(k) * * * 

(7) * * * 

(i) * * * 

(B) Fish for, harvest, possess, or land 

regulated species in or from the closed 

areas specified in § 648.81(a) through (f) 

and (o), unless otherwise specified in 

§ 648.81(c)(2)(iii), (f)(2)(i), (f)(2)(iii), 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23071 

(f)(2)(vi), (i), (o)(2)(i), or as authorized 

under § 648.85. 

* * * * * 

(9) * * * 

(i) If operating under the provisions of 

a limited access NE multispecies 

Handgear A permit south of the GOM 

Regulated Mesh Area, as defined at 

§ 648.80(a)(1), fail to declare the vessel 

operator’s intent to fish in this area via 

VMS or fail to obtain or retain on board 

a letter of authorization from the 

Regional Administrator, as required by 

§ 648.82(b)(6)(iv). 

* * * * * 

(15) * * * 

(ii) * * * 

(A) * * * 

(5) If operating under the provisions 

of a limited access NE multispecies 

Handgear B permit south of the GOM 

Regulated Mesh Area, as defined at 

§ 648.80(a)(1), fail to obtain or retain on 

board a letter of authorization from the 

Regional Administrator, as required by 

§ 648.88(a)(2)(iv). 

* * * * * 

(18) * * * 

(i) * * * 

(D) Offload fish before a dockside/ 

roving monitor arrives, if selected to 

have its offloading events observed by a 

dockside/roving monitor, as specified 

by § 648.87(b)(1)(v)(B)(1) and 

(b)(5)(i)(C). 

* * * * * 

■ 4. In § 648.80, revise the introductory 

text to paragraph (a)(18), and remove 

paragraphs (a)(18)(ii)(C) and (D). 

The revision reads as follows: 

§ 648.80 NE Multispecies regulated mesh 

areas and restrictions on gear and methods 

of fishing. 

* * * * * 

(a) * * * 

(18) Great South Channel Scallop 

Dredge Exemption Area. Vessels issued 

a LAGC scallop permit, including 

limited access scallop permits that have 

used up their DAS allocations, may fish 

in the Great South Channel Scallop 

Dredge Exemption Area, as defined 

under paragraph (a)(18)(i) of this 

section, when not under a NE 

multispecies or scallop DAS or on a 

sector trip, provided the vessel complies 

with the requirements specified in 

paragraph (a)(18)(ii) of this section and 

applicable scallop regulations in subpart 

D of this chapter. 

* * * * * 

■ 5. In § 648.81: 

■ a. Revise the introductory text of 

paragraph (f)(2)(vi); 

■ b. Add paragraph (g)(2)(vi); 

■ c. Revise paragraph (i); and 

■ d. Add paragraph (o). 

The revisions and additions read as 

follows: 

§ 648.81 NE multispecies closed areas and 

measures to protect EFH. 

* * * * * 

(f) * * * 

(2) * * * 

(vi) That are fishing on a sector trip, 

or under the provisions of a Northeast 

multispecies Handgear A permit, as 

specified at § 648.82(b)(6), provided 

such vessels comply with the following 

restricted areas referred to as the Sector 

Rolling Closure Areas: 

* * * * * 

(g) * * * 

(2) * * * 

(vi) That are fishing under the 

provisions of a Northeast multispecies 

Handgear A permit, as specified at 

§ 648.82(b)(6), or the provisions of a 

Northeast multispecies Handgear B 

permit, as specified at § 648.88(a). 

* * * * * 

(i) Transiting. Unless otherwise 

restricted or specified in this paragraph 

(i), a vessel may transit CA I, the 

Nantucket Lightship Closed Area, the 

Cashes Ledge Closed Area, the Western 

GOM Closure Area, the GOM Rolling 

Closure Areas, the GB Seasonal Closure 

Area, the EFH Closure Areas, and the 

GOM Cod Spawning Protection Area, as 

defined in paragraphs (a)(1), (c)(1), 

(d)(1), (e)(1), (f)(1), (g)(1), (h)(1), and 

(o)(1), of this section, respectively, 

provided that its gear is stowed in 

accordance with the provisions of 

§ 648.23(b). A vessel may transit CA II, 

as defined in paragraph (b)(1) of this 

section, in accordance with paragraph 

(b)(2)(iv) of this section. Private 

recreational or charter/party vessels 

fishing under the Northeast 

multispecies provisions specified at 

§ 648.89 may transit the GOM Cod 

Spawning Protection Area, as defined in 

paragraph (o)(1) of this section, 

provided all bait and hooks are removed 

from fishing rods, and any regulated 

species on board have been caught 

outside the GOM Cod Spawning 

Protection Area and has been gutted and 

stored. 

* * * * * 

(o) GOM Cod Spawning Protection 

Area. (1) Except as specified in 

paragraph (o)(2) of this section, from 

April through June of each year, no 

fishing vessel or person on a fishing 

vessel may enter, fish in, or be in; and 

no fishing gear capable of catching NE 

multispecies may be used, on, or be on 

board, a vessel in the GOM Cod 

Spawning Protection Area, as defined 

by straight lines connecting the 

following points in the order stated (a 

chart depicting this area is available 

from the Regional Administrator upon 

request): 

GOM COD SPAWNING PROTECTION

AREA

Point N. Latitude W. Longitude 

CSPA1 ........... 42°50.95′ 70°32.22′ 

CSPA2 ........... 42°47.65′ 70°35.64′ 

CSPA3 ........... 42°54.91′ 70°41.88′ 

CSPA4 ........... 42°58.27′ 70°38.64′ 

CSPA1 ........... 42°50.95′ 70°32.22′ 

(2) Paragraph (o)(1) of this section 

does not apply to persons on a fishing 

vessel or fishing vessels: 

(i) That have not been issued a NE 

multispecies permit and that are fishing 

exclusively in state waters; 

(ii) That are fishing with or using 

exempted gear as defined under this 

part, excluding pelagic gillnet gear 

capable of catching NE multispecies, 

except for vessels fishing with a single 

pelagic gillnet not longer than 300 ft 

(91.4 m) and not greater than 6 ft (1.83 

m) deep, with a maximum mesh size of 

3 inches (7.6 cm), provided: 

(A) The net is attached to the boat and 

fished in the upper two-thirds of the 

water column; 

(B) The net is marked with the vessel 

owner’s name and vessel identification 

number; 

(C) There is no retention of regulated 

species or ocean pout; and 

(D) There is no other gear on board 

capable of catching NE multispecies; 

(iii) That are fishing as a charter/party 

or recreational fishing vessel, provided 

that: 

(A) With the exception of tuna, fish 

harvested or possessed by the vessel are 

not sold or intended for trade, barter, or 

sale, regardless where the species are 

caught; 

(B) The vessel has no gear other than 

pelagic hook and line gear, as defined in 

this part, on board unless that gear is 

properly stowed pursuant to § 648.23(b); 

and 

(C) There is no retention of regulated 

species, or ocean pout; and 

(iv) That are transiting pursuant to 

paragraph (i) of this section. 

■ 6. In § 648.82: 

■ a. Revise paragraphs (a)(2) and the 

introductory text of paragraph (b)(6); 

■ b. Add paragraph (b)(6)(iv); and 

■ c. Revise paragraph (n)(2)(iv). 

The revisions and addition read as 

follows: 

§ 648.82 Effort-control program for NE 

multispecies limited access vessels. 

(a) * * * 

(2) Notwithstanding any other 

provision of this part, any vessel issued 


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a NE multispecies limited access permit 

may not call into the DAS program and 

fish under a DAS, fish on a sector trip, 

or fish under the provisions of a limited 

access Small Vessel Category or 

Handgear A permits pursuant to 

paragraphs (b)(5) and (6) of this section, 

respectively, if such vessel carries 

passengers for hire for any portion of a 

fishing trip. 

(b) * * * 

(6) Handgear A category. A vessel 

qualified and electing to fish under the 

Handgear A category, as described in 

§ 648.4(a)(1)(i)(A), may retain, per trip, 

up to 300 lb (135 kg) of cod, one 

Atlantic halibut, and the daily 

possession limit for other regulated 

species and ocean pout, as specified 

under § 648.86. If either the GOM or GB 

cod trip limit applicable to a vessel 

fishing under a NE multispecies DAS 

permit, as specified in § 648.86(b)(1) 

and (2), respectively, is reduced below 

300 lb (135 kg) per DAS by NMFS, the 

cod trip limit specified in this paragraph 

(b)(6) shall be adjusted to be the same 

as the applicable cod trip limit specified 

for NE multispecies DAS permits. For 

example, if the GOM cod trip limit for 

NE multispecies DAS vessels was 

reduced to 250 lb (113.4 kg) per DAS, 

then the cod trip limit for a vessel 

issued a Handgear A category permit 

that is fishing in the GOM Regulated 

Mesh Area would also be reduced to 

250 lb (113.4 kg). Qualified vessels 

electing to fish under the Handgear A 

category are subject to the following 

restrictions: 

* * * * * 

(iv) Declaration. For any such vessel 

that is not required to use VMS 

pursuant to § 648.10(b)(4), to fish for GB 

cod south of the GOM Regulated Mesh 

Area, as defined at § 648.80(a)(1), a 

vessel owner or operator must obtain, 

and retain on board, a letter of 

authorization from the Regional 

Administrator stating an intent to fish 

south of the GOM Regulated Mesh Area 

and may not fish in any other area for 

a minimum of 7 consecutive days from 

the effective date of the letter of 

authorization. For any such vessel that 

is required, or elects, to use VMS 

pursuant to § 648.10(b)(4), to fish for GB 

cod south of the GOM Regulated Mesh 

Area, as defined at § 648.80(a)(1), a 

vessel owner or operator must declare 

an intent to fish south of the GOM 

Regulated Mesh Area on each trip 

through the VMS prior to leaving port, 

in accordance with instructions 

provided by the Regional Administrator. 

Such vessels may transit the GOM 

Regulated Mesh Area, as defined at 

§ 648.80(a)(1), provided that their gear is 

stowed in accordance with the 

provisions at § 648.23(b). 

* * * * * 

(n) * * * 

(2) * * * 

(iv) Monitoring requirements. Except 

as specified in paragraph (n)(2)(iv)(C), 

starting in fishing year 2012 (May 1, 

2012), landings of regulated species or 

ocean pout by common pool vessels 

shall be monitored at the point of 

offload by independent, third-party 

service providers approved to provide 

such services by NMFS, as specified in 

paragraphs (n)(2)(iv)(A) and (B) of this 

section. Unless otherwise instructed by 

NMFS, these service providers shall 

deploy dockside monitors to monitor 

the offload of catch directly to a dealer, 

and roving monitors to monitor the 

offload of catch onto a truck for 

subsequent shipment to a dealer. For 

fishing year 2012 only, common pool 

vessels must comply with any dockside/ 

roving monitoring program specified by 

NMFS pursuant to 

§ 648.87(b)(1)(v)(B)(1). None of the costs 

associated with dockside/roving 

monitors during fishing year 2012 shall 

be paid by the owner or operator of a 

vessel subject to these requirements. 

Starting in fishing year 2013 and 

thereafter, the costs associated with 

monitoring vessel offloads shall be the 

responsibility of individual vessels, 

unless otherwise instructed by NMFS. 

An individual vessel owner or operator 

may only use one dockside/roving 

monitoring service provider per fishing 

year beginning in fishing year 2013, and 

must contract for such services with a 

service provider approved by NMFS 

pursuant to § 648.87(b)(4), as instructed 

by the Regional Administrator. Both 

common pool vessels and service 

providers providing offloading 

monitoring services will be subject to 

the requirements specified in 

§ 648.87(b)(5). 

(A) Coverage levels. For fishing year 

2012, dockside/roving monitoring 

coverage levels shall be determined by 

NMFS based on available funding. If 

NMFS does not require 100-percent 

coverage of all common pool trips, 

NMFS shall first provide dockside/ 

roving monitoring for trips that are not 

also assigned an observer or at-sea 

monitor pursuant to § 648.11. Starting in 

fishing year 2013, at least 20 percent of 

the trips taken by vessels operating 

under the provisions of the common 

pool shall be monitored. To ensure that 

these levels of coverage are achieved, if 

a trip has been selected to be observed 

by a dockside/roving monitor, all 

offloading events associated with that 

trip must be monitored by a dockside/ 

roving monitor, as specified in 

paragraph (n)(2) of this section, and a 

vessel may not offload any of its catch 

until the dockside/roving monitor 

arrives. For example, a vessel offloading 

at more than one dealer or facility must 

have a dockside/roving monitor present 

during offload at each location. All 

landing events at remote ports that are 

selected to be observed by a dockside/ 

roving monitor must have a roving 

monitor present to witness offload 

activities to the truck, as well as a 

dockside monitor present at each dealer 

to certify weigh-out of all landings. 

Except as provided in this paragraph 

(n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of 

this section, or as instructed by the 

Regional Administrator, any service 

provider providing dockside/monitoring 

services required under this paragraph 

(n)(2)(iv) must ensure that coverage is 

randomly distributed among all such 

trips, and that the landing events 

monitored are representative of fishing 

operations by common pool vessels 

throughout the fishing year. 

(B) Dockside/roving monitor service 

provider standards. Starting in fishing 

year 2013, a common pool vessel must 

employ a service provider approved by 

NMFS to provide dockside/roving 

monitor services, as identified by the 

Regional Administrator. To be approved 

to provide the services specified in 

paragraph (n)(2) of this section, 

dockside/roving monitor service 

providers must meet the standards in 

§ 648.87(b)(4). 

(C) Exemption. Common pool vessels 

operating under the provisions of either 

a limited access Northeast multispecies 

Small Vessel Category permit or 

Handgear A permit, as specified at 

§§ 648.82(b)(5) and (6), respectively, or 

an open access Northeast multispecies 

Handgear B permit, as specified at 

§ 648.88(a), are exempt from the 

dockside/roving monitoring 

requirements specified in this paragraph 

(n)(2)(iv). 

* * * * * 

■ 7. In § 648.87: 

■ a. Revise paragraphs (b)(1)(i)(A), 

(b)(1)(i)(C), (b)(1)(i)(E) introductory text, 

(b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and (ii), 

(b)(1)(iii)(C), (b)(1)(v)(B) introductory 

text, (b)(1)(v)(B)(1), (b)(1)(v)(B)(3) 

introductory text, (b)(1)(v)(B)(3)(i), 

(b)(1)(v)(B)(4) and (5), (b)(1)(viii) 

introductory text, and (b)(1)(viii)(C); 

■ b. Revise paragraph (b)(2) 

introductory text; 

■ c. Revise paragraphs (b)(5) 

introductory text and (b)(5)(i)(A)(1); 

■ d. Add paragraph (b)(5)(ii)(E); 

■ e. Revise paragraph (c)(2)(i); and 

■ f. Add paragraphs (d)(20) through 

(24). 


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The revisions and additions read as 

follows: 

§ 648.87 Sector allocation. 

* * * * * 

(b) * * * 

(1) * * * 

(i) * * * 

(A) Allocated stocks. Each sector shall 

be allocated a TAC in the form of an 

ACE for each NE multispecies stock, 

with the exception of Atlantic halibut, 

SNE/MA winter flounder, ocean pout, 

windowpane flounder (both the GOM/ 

GB and the SNE/MA stocks), and 

Atlantic wolffish based upon the 

cumulative PSCs of vessels/permits 

participating in each sector during a 

particular fishing year, as described in 

paragraph (b)(1)(i)(E) of this section. In 

the event that a future allocation of 

SNE/MA winter flounder can be made 

available pursuant to the biennial 

adjustment or framework process 

specified in § 648.90(a)(2), an ACE for 

this stock will be specified pursuant to 

paragraph (b)(1)(i)(E)(1) of this section. 

* * * * * 

(C) Carry-over. With the exception of 

GB yellowtail flounder, a sector may 

carry over an amount of ACE equal to 

up to 10 percent of its original ACE 

allocation for each stock that is unused 

at the end of one fishing year into the 

following fishing year. Any unused ACE 

allocated for Eastern GB stocks pursuant 

to paragraph (b)(1)(i)(B) of this section 

will contribute to the 10-percent carryover allowance for each stock, as 

specified in this paragraph (b)(1)(i)(C), 

but will not increase an individual 

sector’s allocation of Eastern GB stocks 

during the following year. This carryover ACE remains effective during the 

subsequent fishing year even if vessels 

that contributed to the sector allocation 

during the previous fishing year are no 

longer participating in the same sector 

for the subsequent fishing year. 

* * * * * 

(E) Potential sector contribution 

(PSC). For the purposes of allocating a 

share of the available ACL for each NE 

multispecies stock to approved sectors 

pursuant to § 648.90(a)(4), the landings 

history of all limited access NE 

multispecies permits shall be evaluated 

to determine each permit’s share of the 

overall landings for each NE 

multispecies stock as specified in 

paragraphs (b)(1)(i)(E)(1) and (2) of this 

section. When calculating an individual 

permit’s share of the overall landings for 

a particular regulated species or ocean 

pout stock, landed weight shall be 

converted to live weight to maintain 

consistency with the way ACLs are 

calculated pursuant to § 648.90(a)(4) 

and the way ACEs are allocated to 

sectors pursuant to this paragraph 

(b)(1)(i). This calculation shall be 

performed on July 1 of each year, unless 

another date is specified by the Regional 

Administrator, to redistribute the 

landings history associated with permits 

that have been voluntarily relinquished 

or otherwise canceled among all 

remaining valid limited access NE 

multispecies permits as of that date 

during the following fishing year. The 

PSC calculated pursuant to this 

paragraph (b)(1)(i)(E) shall remain with 

the permit indefinitely, but may be 

permanently reduced or eliminated due 

to a permit sanction or other 

enforcement action. 

(1) Calculation of PSC for all NE 

multispecies stocks except GB cod. 

Unless otherwise specified in paragraph 

(b)(1)(i)(E)(2) of this section, for each 

valid limited access NE multispecies 

permit, including limited access NE 

multispecies Handgear A permits, 

landings recorded in the NMFS dealer 

database of each stock of NE 

multispecies determined by NMFS to be 

the landings history associated with that 

permit while subject to the NE 

multispecies regulations based on 

whether the vessel fishing under that 

permit was issued a limited access NE 

multispecies permit or subsequently 

qualified for a limited access NE 

multispecies permit pursuant to 

§ 648.4(a)(1)(i), including regulated 

species or ocean pout caught under a NE 

multispecies DAS when participating in 

the skate or monkfish fisheries, but 

excluding, for example, landings by 

scallop vessels operating under a 

scallop DAS, shall be summed for 

fishing years 1996 through 2006. This 

sum shall then be divided by the total 

landings of each NE multispecies stock 

during the same period by all permits 

eligible to join sectors as of May 1, 2008. 

The resulting figure shall then be 

multiplied by a factor of 1/PSC of 

remaining permits as of June 1 of each 

year, unless another date is specified by 

the Regional Administrator, to calculate 

the PSC for each individual valid 

limited access NE multispecies permit 

for each regulated species or ocean pout 

stock allocated to sectors in the NE 

multispecies fishery for the following 

fishing year pursuant to this paragraph 

(b)(1)(i)(E)(1). 

(2) * * * 

(i) GB cod PSC for permits committed 

to participate in the GB Cod Hook Gear 

Sector or GB Cod Fixed Gear Sector. For 

each owner of a valid NE multispecies 

permit, or CPH, that committed to 

participate in either the GB Cod Hook 

Gear Sector or the GB Cod Fixed Gear 

Sector as evidenced by a valid 

authorized signature executed on or 

before March 1, 2008, on a preliminary 

roster for either of these sectors, the PSC 

for GB cod shall be equal to the sum of 

dealer landings of GB cod for fishing 

years 1996 through 2001, divided by the 

total landings of GB cod by permits 

eligible to join sectors as of May 1, 2008, 

during that period. The PSC for all other 

regulated species or ocean pout stocks 

specified for these permits shall be 

calculated pursuant to paragraph 

(b)(1)(i)(E)(1) of this section. The PSC 

calculated pursuant to this paragraph 

(b)(1)(i)(E)(2)(i) shall then be multiplied 

by a factor of 1/PSC of remaining 

permits as of June 1 of each year, unless 

another date is specified by the Regional 

Administrator, to calculate the GB cod 

PSC for each permit for the following 

fishing year. 

(ii) GB cod PSC for all other permits. 

For each owner of a valid NE 

multispecies permit or CPH that has not 

committed to participate in either the 

GB Cod Hook Gear Sector or GB Cod 

Fixed Gear Sector, as specified in 

paragraph (b)(1)(i)(E)(2)(i) of this 

section, the GB cod PSC for each such 

permit or CPH shall be based upon the 

GB cod PSC available after accounting 

for the GB cod PSC calculated pursuant 

to paragraph (b)(1)(i)(E)(2)(i) of this 

section. To determine the GB cod PSC 

for each of these permits, the sum of the 

individual permit’s landings of GB cod 

available in the NMFS dealer database 

for fishing years 1996 through 2006 

shall be divided by the total landings of 

GB cod during that period by the total 

landings of GB cod by permits eligible 

to join sectors as of May 1, 2008, during 

that period, after subtracting the total 

landings of GB cod by permits that 

committed to participate in either the 

GB Cod Hook Sector or GB Cod Fixed 

Gear Sector as of March 1, 2008. This 

individual share shall then be 

multiplied by the available GB cod PSC 

calculated by subtracting the GB cod 

PSC allocated pursuant to paragraph 

(b)(1)(i)(E)(2)(i) of this section from one. 

The PSC calculated pursuant to this 

paragraph (b)(1)(i)(E)(2)(ii) shall then be 

multiplied by a factor of 1/PSC of 

remaining permits as of July 1 of each 

year, unless another date is specified by 

the Regional Administrator, to calculate 

the GB cod PSC for each permit. 

* * * * * 

(iii) * * * 

(C) ACE buffer. At the beginning of 

each fishing year, NMFS shall withhold 

20 percent of a sector’s ACE for each 

stock for a period of up to 61 days (i.e., 

through June 30), unless otherwise 

specified by NMFS, to allow time to 

process any ACE transfers submitted at 


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the end of the fishing year pursuant to 

paragraph (b)(1)(viii) of this section and 

to determine whether the ACE allocated 

to any sector needs to be reduced, or 

any overage penalties need to be applied 

to individual permits/vessels in the 

current fishing year to accommodate an 

ACE overage by that sector during the 

previous fishing year, as specified in 

paragraph (b)(1)(iii) of this section. 

* * * * * 

(v) * * * 

(B) Independent third-party 

monitoring program. A sector must 

comply with any dockside/roving 

monitoring program specified by NMFS 

for fishing years 2011 and 2012, 

pursuant to paragraph (b)(1)(v)(B)(1) of 

this section, including the dockside/ 

roving monitoring operational standards 

specified in paragraph (b)(5) of this 

section, and develop and implement an 

independent third-party dockside/ 

roving monitoring program by fishing 

year 2013. A sector must also develop, 

implement, and pay for, to the extent 

not funded by NMFS, an at-sea or 

electronic monitoring program by 

fishing year 2012 (May 1, 2012) 

consistent with paragraph (b)(1)(v)(B)(2) 

of this section. Both the dockside/roving 

and at-sea or electronic monitoring 

program developed by sectors must be 

approved by NMFS for monitoring 

landings and utilization of sector ACE, 

as specified in this paragraph 

(b)(1)(v)(B). Any service provider 

providing dockside/roving and at-sea or 

electronic monitoring services pursuant 

to this paragraph (b)(1)(v)(B) must meet 

the service provider standards specified 

in paragraph (b)(4) of this section, and 

any dockside/roving and at-sea or 

electronic monitoring program proposed 

by sectors must meet the operational 

standards specified in paragraphs (b)(5) 

and (b)(6) of this section, respectively, 

and be approved by NMFS in a manner 

consistent with the Administrative 

Procedure Act. None of the costs 

associated with any dockside/roving 

monitor monitoring requirements shall 

be paid by the owner or operator of a 

vessel subject to these requirements 

during fishing years 2011 and 2012. 

Starting in fishing year 2013, sectors 

shall be responsible for paying the costs 

associated with dockside/roving 

monitoring coverage, unless otherwise 

instructed by NMFS. 

(1) Dockside/roving monitoring 

program. Dockside/roving monitors 

shall monitor landings of regulated 

species and ocean pout at every offload 

for which a trip has been selected to be 

observed by a dockside/roving monitor, 

whether directly to a federally permitted 

dealer or to a truck for transfer to a 

federally permitted dealer, to verify 

such landings at the time the landings 

are weighed by a federally permitted 

dealer and to certify the landing weights 

are accurate as reported on the dealer 

report. Unless otherwise specified in 

this part, the level of coverage for 

landings is specified in paragraph 

(b)(1)(v)(B)(3) of this section. To ensure 

that these levels of coverage are 

achieved, if a trip has been selected to 

be observed by a dockside/roving 

monitor, all offloading events associated 

with that trip, regardless of how many 

or the location of offloading events, 

must be monitored, and a vessel may 

not offload any of its catch until the 

dockside/roving monitor arrives. For 

example, if a trip is selected to be 

observed by a dockside/roving monitor, 

a vessel offloading at more than one 

dealer or facility must have a dockside/ 

roving monitor present during the 

offload at each location. All landing 

events at remote ports that are selected 

to be observed by a dockside/roving 

monitor must have a roving monitor 

present to witness offload activities to 

the truck, as well as a dockside monitor 

present at each dealer to certify weighout of all landings. Any service provider 

providing dockside/roving monitoring 

services pursuant to this paragraph 

(b)(1)(v)(B)(1) must meet the service 

provider standards specified in 

paragraph (b)(4) of this section. The 

details of the dockside/roving 

monitoring program used by each sector 

starting in fishing year 2013 pursuant to 

paragraph (b)(1)(v)(B) of this section 

must be specified in the sector’s 

operations plan, and must be consistent 

with the operational standards specified 

in paragraph (b)(5) of this section. The 

Regional Administrator shall review the 

dockside/roving monitoring program 

and approve/disapprove it as part of the 

yearly operations plan in a manner 

consistent with the Administrative 

Procedure Act. Common pool vessels 

operating under the provisions of the 

either a limited access Northeast 

multispecies Small Vessel Category 

permit or Handgear A permit, as 

specified at §§ 648.82(b)(5) and (6), 

respectively, or an open access 

Northeast multispecies Handgear B 

permit, as specified at § 648.88(a), are 

exempt from the dockside/roving 

monitoring requirements specified in 

this paragraph (b)(1)(v)(B)(1). Except as 

provided in this paragraph 

(b)(1)(v)(B)(1), all common pool and 

sector vessels, along with service 

providers providing dockside 

monitoring services, will be subject to 

the dockside monitoring operational 

requirements specified at § 648.87(b)(5). 

* * * * * 

(3) Coverage levels. Except as 

specified in paragraph (b)(1)(v)(B)(3)(i), 

any service provider providing 

dockside/roving or at-sea or electronic 

monitoring services required under this 

paragraph (b)(1)(v)(B)(3) must provide 

coverage that is fair and equitable, and 

distributed in a statistically random 

manner among all trips such that 

coverage is representative of fishing 

activities by all vessels within the 

common pool or each sector, and by all 

operations of common pool vessels or 

vessels operating in each sector 

throughout the fishing year. 

(i) Dockside/roving monitoring. For 

fishing years 2011 and 2012, NMFS 

shall determine the level of coverage for 

any NMFS-sponsored dockside/roving 

monitoring program specified pursuant 

to paragraph (b)(1)(v)(B)(1) of this 

section based on available funding. If 

100-percent coverage of all sector and 

common pool trips is not possible, 

NMFS shall first provide coverage to 

trips without an observer or at-sea 

monitor assigned pursuant to 

§ 648.11(k), or approved electronic 

monitoring equipment assigned 

pursuant to paragraph (b)(1)(v)(B) of this 

section for sector vessels. Starting in 

fishing year 2013, at least 20 percent of 

all sector and common pool trips shall 

be monitored by dockside/roving 

monitors. 

* * * * * 

(4) Hail reports. For the purposes of 

the dockside/roving and at-sea 

monitoring requirements specified in 

this paragraph (b)(1)(v)(B), sector vessels 

must submit all hail reports for a sector 

trip in which the NE multispecies catch 

applies against the ACE allocated to a 

sector, as specified in this part, to 

service providers offering dockside/ 

roving and at-sea monitoring services 

pursuant to this paragraph (b)(1)(v)(B). 

The mechanism and timing of the 

transmission of such hail reports must 

be consistent with instructions provided 

by the Regional Administrator for any 

dockside/roving monitoring program 

required by paragraph (b)(1)(v)(B)(1) of 

this section, or specified in the annual 

sector operations plan, consistent with 

paragraphs (b)(5) and (6) of this section. 

(5) Notification of service provider 

change. If for any reason a sector 

decides to change approved service 

providers used to provide dockside/ 

roving or at-sea or electronic monitoring 

services required in this paragraph 

(b)(1)(v), the sector manager must first 

inform NMFS in writing in advance of 

the effective date of the change in 


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approved service providers in 

conjunction with the submission of the 

next weekly sector catch report 

specified in paragraph (b)(1)(vi)(B) of 

this section. A sector may employ more 

than one service provider at any time, 

provided any service provider employed 

by a sector meets the standards 

specified in paragraph (b)(4) of this 

section. 

* * * * * 

(viii) ACE transfers. All or a portion 

of a sector’s ACE for any NE 

multispecies stock may be transferred to 

another sector at any time during the 

fishing year and up to 2 weeks into the 

following fishing year (i.e., through May 

14), unless otherwise instructed by 

NMFS, to cover any overages during the 

previous fishing year. A sector is not 

required to transfer ACE to another 

sector. An ACE transfer only becomes 

effective upon approval by NMFS, as 

specified in paragraph (b)(1)(viii)(B) of 

this section. 

* * * * * 

(C) Duration of transfer. 

Notwithstanding ACE carried over into 

the next fishing year pursuant to 

paragraph (b)(1)(i)(C) of this section, 

ACE transferred pursuant to this 

paragraph (b)(1)(viii) is only valid for 

the fishing year in which the transfer is 

approved, with the exception of ACE 

transfer requests that are submitted up 

to 2 weeks into the subsequent fishing 

year to address any potential ACE 

overages from the previous fishing year, 

as provided in paragraph (b)(1)(iii) of 

this section, unless otherwise instructed 

by NMFS. 

* * * * * 

(2) Operations plan and sector 

contract. To be approved to operate, 

each sector must submit an operations 

plan and preliminary sector contract to 

the Regional Administrator no later than 

September 1 prior to the fishing year in 

which the sector intends to begin 

operations, unless otherwise instructed 

by NMFS. A final roster, sector contract, 

and list of Federal and state permits 

held by participating vessels for each 

sector must be submitted by December 

1 prior to the fishing year in which the 

sector intends to begin operations, 

unless otherwise instructed by NMFS. 

The operations plan may cover a 1- or 

2-year period, provided the analysis 

required in paragraph (b)(3) of this 

section is sufficient to assess the 

impacts of sector operations during the 

2-year period and that sector 

membership, or any other parameter 

that may affect sector operations during 

the second year of the approved 

operations plan, does not differ to the 

point where the impacts analyzed by the 

supporting NEPA document are 

compromised. Each vessel and vessel 

operator and/or vessel owner 

participating in a sector must agree to 

and comply with all applicable 

requirements and conditions of the 

operations plan specified in this 

paragraph (b)(2) and the letter of 

authorization issued pursuant to 

paragraph (c)(2) of this section. It shall 

be unlawful to violate any such 

conditions and requirements unless 

such conditions or restrictions are 

identified in an approved operations 

plan as administrative only. If a 

proposed sector does not comply with 

the requirements of this paragraph 

(b)(2), NMFS may decline to propose for 

approval such sector operations plans, 

even if the Council has approved such 

sector. At least the following elements 

must be contained in either the final 

operations plan or sector contract 

submitted to NMFS: 

* * * * * 

(5) Dockside monitoring operational 

standards. In addition to the 

independent third-party monitoring 

provider standards specified in 

paragraph (b)(4) of this section, any 

dockside monitoring program developed 

by NMFS pursuant to paragraph 

(b)(1)(v)(B)(1) of this section must meet 

the following operational standards to 

be approved by NMFS: 

(i) * * * 

(A) * * * 

(1) Trip-start hail report. As 

instructed by the Regional 

Administrator, the vessel operator must 

submit a trip-start hail report prior to 

departing port at the beginning of each 

trip notifying the sector manager and/or 

dockside/roving monitor service 

provider of the vessel permit number; 

trip ID number in the form of the VTR 

serial number of the first VTR page for 

that trip, or another trip identifier 

specified by NMFS; and an estimate of 

the date and time of arrival to port. Tripstart hail reports by vessels operating 

less than 6 hours or within 6 hours of 

port must also include estimated date 

and time of offload. If the vessel 

operator does not receive confirmation 

of the receipt of the trip-start hail report 

from the dockside/roving monitor 

service provider within 10 minutes of 

sending the original trip-start hail 

report, the operator must contact the 

service provider to confirm the trip-start 

hail report via an independent back-up 

system developed by the service 

provider. 

* * * * * 

(ii) * * * 

(E) Inspection of fish holds. A 

dockside/roving monitor assigned to 

observe the offloading of fish from a 

particular trip shall inspect the fish 

holds, or any other areas of the vessel 

in which fish are stored, to determine if 

all fish are offloaded for that particular 

trip. 

* * * * * 

(c) * * * 

(2) * * * 

(i) Regulations that may not be 

exempted for sector participants. The 

Regional Administrator may not exempt 

participants in a sector from the 

following Federal fishing regulations: 

NE multispecies year-round closure 

areas; permitting restrictions (e.g., vessel 

upgrades, etc.); gear restrictions 

designed to minimize habitat impacts 

(e.g., roller gear restrictions, etc.); and 

reporting requirements. For the 

purposes of this paragraph (c)(2)(i), the 

DAS reporting requirements specified at 

§ 648.82; the SAP-specific reporting 

requirements specified at § 648.85; and 

the reporting requirements associated 

with a dockside monitoring program 

specified in paragraph (b)(5)(i) of this 

section are not considered reporting 

requirements, and the Regional 

Administrator may exempt sector 

participants from these requirements as 

part of the approval of yearly operations 

plans. This list may be modified 

through a framework adjustment, as 

specified in § 648.90. 

* * * * * 

(d) * * * 

(20) State of Maine Permit Banking 

Sector. 

(21) State of Rhode Island Permit 

Bank Sector. 

(22) State of New Hampshire Permit 

Bank Sector. 

(23) State of Massachusetts Permit 

Bank Sector. 

(24) Sustainable Harvest Sector III. 

■ 8. In § 648.88, revise paragraph (a)(1), 

and add paragraph (a)(2)(iv) to read as 

follows: 

§ 648.88 Multispecies open access permit 

restrictions. 

(a) * * * 

(1) The vessel may possess and land 

up to 75 lb (90.7 kg) of cod, and up to 

the landing and possession limit 

restrictions for other NE multispecies 

specified in § 648.86, provided the 

vessel complies with the restrictions 

specified in paragraph (a)(2) of this 

section. If either the GOM or GB cod trip 

limit applicable to a vessel fishing 

under a NE multispecies DAS permit, as 

specified in § 648.86(b)(1) and (2), 

respectively, is adjusted by NMFS, the 

cod trip limit specified in this paragraph 

(a)(1) shall be adjusted proportionally 

(rounded up to the nearest 25 lb (11.3 


srobinson on DSKHWCL6B1PROD with RULES3
23076 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

kg)). For example, if the GOM cod trip 

limit specified at § 648.86(b)(1) doubled, 

then the cod trip limit for the Handgear 

B category fishing in the GOM 

Regulated Mesh Area would also double 

to 150 lb (68 kg). 

(2) * * * 

(iv) Declaration. To fish for GB cod 

south of the GOM Regulated Mesh Area, 

as defined at § 648.80(a)(1), a vessel 

owner or operator must obtain, and 

retain on board, a letter of authorization 

from the Regional Administrator 

declaring an intent to fish south of the 

GOM Regulated Mesh Area, and may 

not fish in any other area for a minimum 

of 7 consecutive days from the effective 

date of the letter of authorization. Such 

a vessel may transit the GOM Regulated 

Mesh Area, provided that their gear is 

stowed in accordance with the 

provisions at § 648.23(b). 

* * * * * 

■ 9. In § 648.89, revise paragraph (e)(1) 

to read as follows: 

§ 648.89 Recreational and charter/party 

vessel restrictions. 

* * * * * 

(e) * * * 

(1) GOM Closed Areas. Unless 

otherwise specified in this paragraph 

(e)(1), a vessel fishing under charter/ 

party regulations may not fish in the 

GOM closed areas specified at 

§ 648.81(d)(1) through (f)(1) during the 

time periods specified in those 

paragraphs, unless the vessel has on 

board a valid letter of authorization 

issued by the Regional Administrator 

pursuant to § 648.81(f)(2)(iii) and 

paragraph (e)(3) of this section. The 

conditions and restrictions of the letter 

of authorization must be complied with 

for a minimum of 3 months if the vessel 

fishes or intends to fish in the seasonal 

GOM closure areas; or for the rest of the 

fishing year, beginning with the start of 

the participation period of the letter of 

authorization, if the vessel fishes or 

intends to fish in the year-round GOM 

closure areas. A vessel fishing under 

charter/party regulations may not fish in 

the GOM Cod Spawning Protection Area 

specified at § 648.81(o)(1) during the 

time period specified in that paragraph, 

unless the vessel complies with the 

requirements specified at 

§ 648.81(o)(2)(iii). 

* * * * * 

■ 10. In § 648.90, revise paragraph 

(a)(4)(iii)(E)(2) to read as follows: 

§ 648.90 NE multispecies assessment, 

framework procedures and specifications, 

and flexible area action system. 

(a) * * * 

(4) * * * 

(iii) * * * 

(E) * * * 

(2) Commercial allocation. The ABC/ 

ACL for regulated species or ocean pout 

stocks available to the commercial NE 

multispecies fishery, after consideration 

of the recreational allocation pursuant 

to paragraph (a)(4)(iii)(E)(1) of this 

section, shall be divided between 

sectors operating under an approved 

sector operations plan, as described at 

§ 648.87(c), and vessels operating under 

the provisions of the common pool, as 

defined in this part, based upon the 

cumulative PSCs of vessels/permits 

participating in sectors calculated 

pursuant to § 648.87(b)(1)(i)(E). Unless 

otherwise specified in paragraph (a)(5) 

of this section, regulated species or 

ocean pout catch by common pool and 

sector vessels shall be deducted from 

the sub-ACL/ACE allocated pursuant to 

this paragraph (a)(4)(iii)(E)(2) for the 

purposes of determining whether 

adjustments to common pool measures 

are necessary, pursuant to the common 

pool AMs specified in § 648.82(n), or 

whether sector ACE overages must be 

deducted, pursuant to § 648.87(b)(1)(iii). 

* * * * * 

[FR Doc. 2011–9705 Filed 4–19–11; 4:15 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 110201085–1212–02] 

RIN 0648–XY55 

Magnuson-Stevens Act Provisions; 

Fisheries of the Northeastern United 

States; Northeast Multispecies 

Fishery; 2011 Sector Operations Plans 

and Contracts, and Allocation of 

Northeast Multispecies Annual Catch 

Entitlements 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: This interim final rule 

partially approves and implements 19 

sector operations plans and contracts for 

fishing year (FY) 2011. NMFS received 

sector operations plans and contracts 

from the following 22 sectors: The 

Georges Bank (GB) Cod Fixed Gear 

Sector; the Maine Permit Bank Sector; 

the Massachusetts Permit Bank Sector; 

the New Hampshire Permit Bank Sector; 

the Northeast Coastal Communities 

Sector; Northeast Fishery Sectors II 

through XIII; the Port Clyde Community 

Groundfish Sector; the Rhode Island 

Permit Bank Sector; Sustainable Harvest 

Sectors 1 and 3; and the Tri-State 

Sector. This interim final rule partially 

approves the operations plans and 

contracts, and allocates an annual catch 

entitlement (ACE) of certain NE 

multispecies stocks to the following 19 

sectors: The GB Cod Fixed Gear Sector; 

the Maine Permit Bank Sector; the 

Northeast Coastal Communities Sector; 

Northeast Fishery Sectors II through 

XIII; the Port Clyde Community 

Groundfish Sector; Sustainable Harvest 

Sectors 1 and 3; and the Tri-State 

Sector. The Massachusetts Permit Bank 

Sector, the New Hampshire Permit Bank 

Sector, and the Rhode Island Permit 

Bank Sector, were unable to fulfill the 

roster requirements, and, therefore, were 

not approved to operate in FY 2011. 

Certain exemptions proposed in the 

operations plans have not been 

approved, as explained in detail below. 

Additionally, NMFS is modifying, for 

the purposes of this rule, the definition 

for ‘‘unmarketable’’ fish (see Exemption 

11) and will accept further comment on 

this definition. NMFS is also accepting 

further comment on final sector 

membership. NMFS will publish a 

subsequent final rule, if necessary, 

making any further changes to this 

definition or in light of additional 

comments on changes to membership of 

sectors since the publication of this rule. 

DATES: Effective May 1, 2011, through 

April 30, 2012. Written comments must 

be received on or before May 10, 2011. 

ADDRESSES: You may submit comments 

on the new definition of ‘‘unmarketable’’ 

fish and changes to sector membership, 

identified by 0648–XY55, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: Allison 

Murphy. 

• Mail: Paper, disk, or CD–ROM 

comments should be sent to Patricia A. 

Kurkul, Regional Administrator, 

National Marine Fisheries Service, 55 

Great Republic Drive, Gloucester, MA 

01930. 

Instructions: All comments received 

are part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 


srobinson on DSKHWCL6B1PROD with RULES3